UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


ELEMENTS 


OF  THE 


LAW  OF  BAILMENTS 


AND 


CARRIERS 


INCLUDING 


PLEDGE  AND  PAAVN  AND  INNKEEPERS 


BY 

PHILIP  T.  VAN  ZILE,  LL.  D. 

DEA>r  OF  THE  Detroit  College  of  Law 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1902 


Copyright,  1902, 

BY 

CALLAGHAN  AND  COMPANY. 


STATE  JOURNAL  PRINTING  COMPANY, 

Printers  and  Stereotypers, 

madison,  wis. 


ERRATA. 

Strike  out  "of,"  10th  word,  line  8,  page  6. 

Strike  out  "  incorporated  "  and  insert  "  incorporeal,"  7th  word,  line  3,  sec.  18. 

Strike  out  "  bailor's  '"  and  insert  "  bailee's,"  4th  word,  line  G,  page  10. 

Strike  out  "  bailor  "  and  insert  •'  bailee,"  9th  word,  line  4,  sec.  28. 

Strike  out  "  bailee  and  insert  ''  bailor,"  8th  word,  line  22,  page  43  (sub.  b). 

Strike  out '' commodatiim  "  and  insert  "  mandatum.'^  11th  w^rd,  line    11, 

page  49  (sub.  h). 
Strike  out  "  mandatum^'  and  insert  '' commodatum."  2d  word,  line  32,  page 

63. 
Strike  out  "lender"  and  insert  "  borrower,"  3d  word,  line  15.  sec.  110. 
Strike  out  "  receiving  "  and  insert  "leaving,"  2d  word,  line  16,  page  124. 
Strike  out  "  bailee's  "  and  insert  "  plaintiff's,"  2d  word,  line  29,  page  124. 
Strike  out  "bailee's  "  and  insert  "  bailor's,"  7th  woi'd,  top  line,  page  146,  sec. 

198.   • 
Strike  out  "  nature  "  and  insert  "  share,"  11th  word,  line  17,  page  163. 
Strike  out  "their  "and  insert  "tliat,"  1st  word,  line  25,  page  163. 
Strike  out  "  presence  "  and  insert  "  pursuance,"  6th  word,  line  10,  page  215. 
Strike  out  "or  pledgor,"  8th  word,  line  6.  and  1st  word,  line  7.  page  240. 
Strikeout  "  pledgee"  and  insert  "  pledgor,'"  11th  word,  line  16,  and  5th  wci'd, 

line  20,  page  261. 
Strike  out  "carrier"  and  insert  "shipper,"  3d  word,  16th  line,  sec.  511. 


TO  THE 

ALUMNI 

AND 

STUDENTS  OF  THE  DETROIT  COLLEGE  OF  LAW 

THIS  WORK  IS  RESPECTFULLY  DEDICATED 


PREFACE. 


In  the  publication  of  this  work  it  is  not  expected  that  any 
new  principle  of  the  law  of  bailments  and  carriers  will  be  pro- 
mulgated, for  we  fully  realize  the  truthfulness  and  wisdom  of 
that  which  was  said  three  thousand  years  ago,  "the  thing  that 
hath  been,  it  is  that  which  shall  be;  and  that  which  is  done  is 
that  which  shall  be  done;  and  there  is  no  new  thino-  under  the 
sun." 

For  ten  years  the  writer  has  been  engaged  as  a  lecturer  upon 
these  subjects  in  the  Detroit  College  of  Law,  and  the  interest 
awakened  while  thus  engaged  suggested  the  writing  of  this 
book. 

The  principles  governing  the  law  here  discussed  are  by  no 
means  new;  they  are  as  old  as  the  civilization  of  the  races;  as 
the  recognition  of  "  law  and  order,"  and  the  property  rights 
of  men. 

The  needs  of  men  and  the  advancement  of  business  have  at 
all  times  brought  to  the  attention  of  courts  and  authors  new 
developments  and  situations  for  the  application  of  the  settled 
principles  of  the  law ;  and  so  the  most  that  can  be  said  is,  that 
while  the  law  upon  these  subjects  has  been  and  is  a  development, 
it  is  a  development  of  the  application  of  principles  rather  than 
a  creation  of  new  and  unknown  rules  of  law;  and  all  that  any 
writer  can  expect  to  accomplish  is  to  note  this  development  by 
way  of  the  application  of  these  known  legal  principles  to  the 
new  and  novel  questions  of  fact  that  the  great  business  world 
is  constantly  presenting  for  the  consideration  of  the  courts  and 
the  legal  profession. 

The  development  of  the  law  of  carriers  has  been  largely  the 
result  of  the  demands  of  public  policy.  It  was  the  demand  ol 
public  policy  that  laid  upon  the  common  carrier  the  extraor- 
dinary liability;  and  it  is  public  policy  that,  recognizing  the 
advance  of  civilization  and  the  lighting  up  of  the  dark  spots  of 
earth,  will  modify  that  harsh  and  extraordinary  liability,  or  at 


VI  PREFACE. 

least  allow  it  to  be  done  by  contract  based  upon  valuable  con- 
sideration. These  questions  are  interesting  to  the  student  and 
the  practitioner. 

The  carrier  of  passengers,  his  relation  to  the  passenger,  and 
his  liability  have  undergone  interesting  developments  by  rea- 
son of  the  appearance  and  adoption  of  the  many  important 
improvements  in  the  vehicles  of  the  carrier  and  the  motive 
power  introduced  during  the  last  decade. 

There  are  no  subjects  of  the  law  that  are  more  replete  with 
progressive  reasoning  from  established  principles  than  the  sub- 
jects we  have  here  treated.  But  while  the  past  has  yielded  to 
us  the  settlement  of  interesting  questions  in  the  application  of 
the  law  of  bailments  and  carriers,  the  future  promises  ques- 
tions of  full  greater  interest  in  every  department  of  business 
to  which  these  subjects  relate.  They  are  continually  taking 
on  new  activities  and  developing  new  and  important  principles. 
From  the  messenger  service  to  the  management  of  the  great 
trunk  lines  of  railroads,  all  are  teeming  with  the  push  and  im- 
provements of  the  age.  Electricity  promises  new  fields  not 
yet  explored,  but  soon  to  be  met.  Improved  machinery  and 
appliances,  the  great  increase  in  the  volume  of  business,  give 
an  added  interest  to  the  law  of  bailments  and  carriers;  and 
one  who  writes  to-day  stands  merely  upon  the  threshold,  and 
can  but  contemplate  with  amazement  the  ever  onsweeping 
business  and  industries  of  men  that  are  constantly  present- 
ing to  the  lawyer  and  the  court  new  and  important  questions. 
Our  past  and  present  have,  indeed,  been  important,  but  the 
future  must  be  more  so. 

Should  this  work  be  instrumental  in  aiding  the  student  of 
the  law  in  his  researches,  and  merit  the  commendation  of  my 
brethren  at  the  bar,  the  writer  will  feel  repaid  for  his  en- 
deavor. 

Detroit,  Mich.,  January  1, 1902,  P.  T.  V. 


TABLE  OF  CONTENTS. 


References  are  to  sections. 


PART  FIRST 
ORDINARY  BAILMENTS. 


CHAPTER  I. 

THE  RELATION. 

Of  the  history  and  origin 1 

Definition 2 

Judge  Story's  definition  and  criticism 3 

Chancellor  Kent's  definition  and  criticism . .   4 

Judge  Story  sustained 5 

Purpose  of  the  bailment  may  necessitate  a  change  in  condition 6 

A  further  exception  as  to  delivery 7 

The  Roman  mutuum 8 

Grain  stored  in  elevators 9 

Flouring-mills 10 

The  parties  to  a  bailment 11 

Who  may  be  bailor  or  bailee 12 

Competency  of  parties 13 

These  disabilities  a  shield  but  not  a  sword 14 

An  agent  may  create  the  relation 15 

Corporations 16 

Some  very  common  examples  of  bailments 17 

The  kind  of  property  that  may  be  the  subject  of  bailment 18 

Delivery  and  acceptance 19 

Title  of  bailor 20 

Bailor  may  sell  or  incumber  property  —  Title  of  bailee 21 

Bailor  must  exercise  good  faith —  Must  not  expose  bailee  to  danger. .  22 

Bailment  or  sale 23 

Commingling  of  grain  on  storage 24 

A  bailment,  a  sale,  or  a  gift  —  How  determined  25 


VIU  TABLE    OF    CONTENTS. 

References  are  to  sections. 

CHAPTER  11. 

OF  THE  CLASSIFICATION  OF  BAILMENTS. 

Roman  classification  adopted  by  authors 26 

Modern  classification  upon  the  theory  of  recompense  or  no  recom- 


pense . 


27 


Modern  classification  includes  earlier  classification 28 

Ordinary  bailments 29 

Exceptional  bailments 30 

Chart  showing  classification  of  bailments 31 

CHAPTER  III. 

OF    THE    RIGHTS,    DUTIES   AND    LIABILITIES    GENERALLY  OF 
BAILOR  AND  BAILEE. 

Object  of  chapter 33 

Gratuitous  and  non-gratuitous  bailments 33 

Consideration 34 

Benefit  of  bailor,  or  bailee,  or  both 35 

Negligence  or  diligence 36 

Chart  showing  duties  and  liabilities  37 

What  is  diligence  and  what  is  negligence  38 

Definition  generally  accepted 39 

Every  case  ruled  by  its  own  circumstances 40 

High  diligence  —  Gross  negligence 41 

Diligence  and  negligence  —  Questions  of  law  and  fact 42 

Classification  of  conditions  and  circumstances 43 

CHAPTER  lY. 

SOME  FURTHER  GENERAL  PRINCIPLES  TOUCHING  RIGHTS  AND 
LIABILITIES  OF  PARTIES  TO  BAILMENT. 

An  element  of  agency 44 

Under  circumstances  may  bind  bailor 45 

Right  to  use  the  property 46 

Unwarranted  use  would  render  the  bailee  liable 47 

Bailee  may  protect  the  property  and  his  interest 48 

Skilled  bailee 49 

Rule  not  always  carefully  stated 50 

Special  deposits  in  banks  51 

Determining  negligence 53 

Honesty  and  good  faith  demanded 53 

Bailee  may  protect  himself  against  claim  of  third  parties 54 

What  would  excuse  liability 55 

Unlawful  tortious  possession  would  render  bailee  liable  for  injury  or 

loss 56 

Rights  and  duties  to  third  parties 57 

Bailee  against  third  parties 58 


TABLE    OF    CONTENTS.  IX 


References  are  to  sections. 


Modifying  or  enlarging  responsibility  by  contract 59 

How  far  can  the  bailee  lessen  his  responsibility  by  contract 60 

Redelivery  to  bailor 61 

Not  always  required  to  redeliver  the  specific  property 63 

Excuses  for  non-delivery 6o 

Conversion  of  the  property 64 

Bailee's  right  to  compensation  and  to  a  lien  upon  the  property 6.") 

Agreement  for  compensation,  express  or  implied,  necessary  to  create 

lien 66 

If  no  statute  or  express  contract  creating  common-law  lien 67 

Two  kinds  of  liens 68 

Delivery  to  the  bailee  for  the  purpose  of  the  bailment  necessary  to 

the  establishment  of  the  lien 69 

Possession  of  the  property  an  essential 70 

The  finder  of  property  may  have  lien  71 

Extinction  of  the  lien  —  Payment  or  tender 72 

The  lien  may  be  waived    73 

Lien  once  lost  cannot  be  revived 74 

Right  of  the  bailor  to  compensation 75 

Enforcement  of  the  lien  of  bailee 76 

CHAPTER  y. 

TERMINATION  OF  THE  BAILMENT. 

The  several  ways 77 

By  expiration  of  the  time  for  which  the  property  was  bailed 78 

By  reason  of  the  accomplishment  of  the  object 79 

By  act  of  parties 80 

By  operation  of  law 81 

By  destruction  of  the  bailed  property 83 

By  death  of  the  bailee  83 

By  incompetency  of  the  parties 84 

CHAPTEE  YI. 

LIABILITY  OF  THE  BAILOR  AND  BAILEE  WHEN  THE  BAILMENT 
IS  FOR  THE  SOLE  BENEFIT  OF  THE  BAILOR. 

These  bailments  of  two  kinds 85 

Mandatum 86 

Depositum 87 

Use  of  deposit 88 

Special,  not  general  deposit '. 89 

Quasi'-deposits 90 

Subject  limited 91 

Distinction  between  depositum  and  mandatum 93 

A  contract  relation 93 

The  bailee's  liability 94 

Authorities  not  entirely  harmonious 95 


TABLE    OF    CONTENTS. 


References  are  to  sections. 


For  the  sole  benefit  of  bailor 96 

Even  indirect  benefit  would  change  the  class  of  bailment 97 

Notice  of  facts  requiring  special  care 98 

Failure  to  obey  instruction  or  the  terms  of  the  bailment 99 

Termination  of  the  relation  and  bailor's  remedies 100 

CHAPTER  YII. 

LIABILITY  OF  BAILOR  AND  BAILEE  WHEN  BAILMENT  FOR  THE 
SOLE  BENEFIT  OF  THE  BAILEK 

Commodatum 101 

For  sole  benefit  of  the  bailee 102 

The  liability  of  the  bailee 108 

The  contract  must  be  for  legal  purpose 104 

Need  not  be  absolute  owner  to  be  bailor  or  lender 105 

What  right  does  the  contract  of  loan  or  bailment  confer  ? 106 

Obligations  of  the  borrower 107 

Bailee's  defenses 108 

The  injury  or  loss  must  have  been  without  his  fault 109 

Ordinary  and  extraordinary  expenses  to  be  paid 110 

Redelivery  of  the  thing  bailed Ill 

Borrower  cannot  retain  for  debt  due  him 113 

Obligation  of  the  lender 113 

CHAPTER  YIII. 

LIABILITY    OF    BAILOR    AND    BAILEE   WHEN   BAILMENT   FOR 
BENEFIT  OF  BOTH. 

Of  the  nature  and  extent  of  mutual-benefit  bailments 114 

Locatio  et  conductio  bailments 115 

Some  definitions  further  explaining 116 

A  general  view  —  Locatio  et  conductio 117 

Locatio  conductio  bailments  118 

What  the  hiring  bailments  embrace 119 

General  subdivisions  of  the  hiring  bailments 120 

CHAPTER  IX. 

LOCATIO  REL 

The  hiring  of  the  thing  for  use 121 

A  contract  relation 122 

Bailor's  title  —  Warranty  of  bailor 123 

Bailee's  possession  —  Property  interest  in  the  thing 124 

Duty  of  bailor  to  give  notice  of  defects  rendering  thing  unfit  fOr  use 

or  dangerous 125 

Bailee  —  Good  faith  of  —  Misuse  of  thing ?. . .  126 

Conversion  —  What  constitutes    127 

Exercising  unauthorized  dominion  and  control  over  property  — 

Conversion 128 


TABLE    OF    CONTENTS.  XI 


References  are  to  sections. 


Bailor's  right  against  third  party,  against  bailee 129 

Bailee's  liability  to  third  parties  for  negligent  use  —  Bailee's  negli- 
gence not  imputable  to  bailor 130 

Bailee's  right  under  certain  circumstances  to  assign  his  interests 131 

Extraordinary  and  incidental  expenses 132 

Termination  of  the  bailment 133 

CHAPTER  X. 

LOCATIO  OPERIS  BAILMENTS. 

The  hiring  of  labor  and  service  upon  the  thing , , 134 

Locatio  oj^erisfaciendi  —  The  hiring  of  work  and  labor  upon  the  thing  135 

Contract  relation 136 

The  obligations  of  the  employer,  the  bailor 137 

Bailee  has  a  special  property  in  the  thing 138 

Whether  a  sale  or  bailment 139 

When  product  from  material  furnished  and  labor  to  be  sold  and  prof- 
its divided 140 

If  the  thing  is  destroyed  during  the  carrying  out  of  the  agreement  or 

after  finished ...    . . .  , 141 

The  duty  of  the  bailee 142 

If  the  work  is  to  be  performed  by  the  job,  and  loss  or  injury  occur  be- 
fore completion 143 

The  work  must  be  done  as  contracted 144 

Same  subject 145 

Summary  of  the  discussion  thus  far 146 

Not  every  failure  to  perform  contract  obligations  will  deprive  bailee 

of  entire  compensation ....  147 

If  the  failure  to  perform  is  the  fault  of  the  bailor 148 

Inevitable  accident  or  irresistible  force 149 

Reclaiming  the  property 150 

Generally  the  bailee  may  do  the  work  by  an  agent  or  servant 151 

Where  skill  as  well  as  care  is  required 152 

He  must  exercise  the  skill  adequate  to  the  proper  performance  of  the 

work 153 

If  the  bailee  for  hire  purports  to  have  skill  he  must  use  it 154 

Ordinary  skill  required 155 

The  degree  of  skill  and  diligence  increases  in  certain  cases 156 

Skilled  work  by  an  agent  or  servant 157 

Defenses  of  the  bailee , 158 

Notice  to  the  bailor  that  claims  for  defects  must  be  made  within  a 

certain  time 159 

Title  to  the  material  used  by  bailee  passes  to  bailor  by  accession 160 

The  lien  of  the  bailee  in  locatio  operis  faciendi  bailments 161 

Priority  of  the  lien .    . .    ; 162 

Agisters  and  livery-stable  men  —  No  lien  at  common  law 163 

Lien  by  statute ...  164 

CJIiattel  mortgage  takes  precedence  over  lieu 165 

Other  questions  previously  discussed 168 


Xll  TABLE    OF    CONTENTS. 

References  are  to  seetiong. 

CHAPTER  XI. 

LOCATIO  CUSTODIJE. 

The  letting  of  care  and  custody  of  the  thing  for  hire 167 

What  this  subdivision  embraces 168 

Depositum 169 

The  subject  discussed ITO 

Warehouseman 171 

Public  warehouses 172 

Bonded  warehouses 173 

Delivery  —  To  create  liability -. 174 

Sale  or  bailment 175 

The  warehouse  receipt 176 

Warehousemen  may  insure  the  property 177 

Usage  and  general  course  of  business  to  a  certain  extent  defines  the 

duty  of  warehouseman  as  bailee 178 

At  common  law  a  warehouse  receipt  in  a  technical  sense  is  not  nego- 
tiable    179 

Warehouseman  not  permitted  to  impeach  his  receipt     180 

Negotiability  of  receipt  pi'ovided  by  statute 181 

Common  carriers,  when  warehousemen - . .  183 

As  to  goods  awaiting  delivery 183 

The  New  Hampshire  rule  184 

The  third  class  of  cases '. 185 

Wharfingers 186 

When  the  liability  begins 187 

When  the  liability  ends 188 

Factors  or  commission  merchants 189 

Storage-house  keepers 190 

Some  of  the  duties  of  the  bailor 191 

Dangerous  articles 193 

When  the  liability  of  the  storage-house  keeper  begins 193 

When  the  liability  ends 194 

Storage-house  keepers  and  warehousemen  the  same 195 

Safe-deposit  and  trust  companies 196 

These  deposits  not  gratuitous  —  Differ  from  a  mere  depositum 197 

The  nature  of  the  bailment  and  the  diligence  required 198 

— —  Other  classes  of  custodians 199 

Liability  of  bailee  in  custodier  bailments 200 

Wiien  does  the  liability  commence  and  end 201 

Proper  place  and  kind  of  storage  203 

Diligence  must  keep  pace  with  improvements 203 

Proof  of  negligence 204 

Does  the  burden  of  proof  of  negligence  shift £05 

The  question  summed  up  and  the  rule  settled ^. . . .  206 

Contributory  negligence 207 

Negligence  of  servants 208 

Unauthorized  use  of  chattels 209 


TABLE    OF   CONTENTS.  Xlii 

References  are  to  sections. 

Delivery,  misdelivery,  non-delivery 210 

Confusion  of  goods 211 

Criminal  liability 212 

Termination 21o 

Conversion 214 

Compensation  —  Lien ,  215 


PART  SECOND 
PLEDGE  OR  PAWN 


CHAPTER  I. 

THE  RELATION. 

Pignus 216 

The  scope  of  the  business 217 

Definition 218 

Some  essentials 219 

Competent  parties  220 

There  must  be  assent  of  the  parties 221 

Corporations,  partnerships,  agencies 222 

Property  the  subject  of  the  pledge  . . , 223 

Corporeal  or  incorporeal 224 

Property  not  in  existence  or  acquired  .   225 

Exceptions 226 

Exempt  property  may  be  pledged 227 

Pensions  and  pay  to  officers  and  soldiers 228 

The  debt  or  engagement 229 

Pledge  as  collateral  security 280 

Contract  should  specify  debt  secured 231 

Pledge  may  be  to  secure  past,  present  or  future  indebtedness. . . .  232 

The  pledgor  may  pledge  his  property  to  secure  the  debt  of  an- 
other    233 

As  to  holding  property  for  former  or  another  debt 234 

Continuing  security  —  Future  transactions 235 

When  several  debts  —  Applications  of  payment 236 

A  pledge  which  secures  a  debt  bearing  interest  secures  the  in- 
terest as  well  as  the  debt 237 

Delivery  of  the  property  by  the  pledgor  —  Acceptance  and  continued 

possession  of  the  property  by  the  pledgee 237a 

If  property  not  delivered  —  Pledge,  when  good 238 

The  delivery 23!) 

Constructive  or  symbolical  delivery 240 


XIV  TABLE    OF    CONTENTS. 

References  are  to  sections. 

CHAPTER  II. 

PLEDGING  NEGOTIABLE  PAPER. 

Negotiable  paper 241 

An  equitable  assignment 242 

Pledgee  holder  for  value 243 

Whether  a  pre-existing  debt  a  sufficient  consideration  to  constitute  a 

pledgee  a  holder  for  value 244 

CHAPTER  III. 

NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE  INSTRUMENTS. 

The  nature  and  effect  of  such  instruments 245 

The  pledging  of  corporate  stock 246 

What  deemed  sufficient  delivery  by  pledgor  to  pledgee 247 

Transfer  in  blank 248 

Legal  and  equitable  title 249 

How  affected  by  charter  and  by-laws  of  the  company 250 

The  pledgee  protected  as  against  creditors 251 

Tlie  pledgee  of  stock  by  indorsement  may  transfer  the  title. 252 

Bills  of  lading  subject  of  pledge 253 

Delivery  by  the  pledgor •  254 

Mere  delivery  of  the  bill  sufficient 255 

Bill  of  lading  to  consignee  with  draft  attached 256 

A  bill  of  lading,  how  far  negotiable '• 257 

W^ho  are  bona  fide  holders  of  bills  of  lading 258 

Rights  of  bona  fide  holders  259 

Bona  fide  holder  from  agent  of  owner,  or  one  having  apparent  title. .  260 

The  warehouse  receipt  as  collateral 261 

Delivery  of  the  receipt  required  —  Indorsement  in  blank 262 

Pledge  created  by  mere  delivery  of  receipt 268 

Statutes  of  states,  with  reference  to  pledgee  of  warehouse  receipt 264 

If  the  receipt  is  made  to  bearer 265 

Insurance  policies  as  collateral 266 

Delivery  a  requisite 267 

How  delivered 268 

By  indorsement  in  blank  and  delivery 269 

Notes  and  mortgages,  and  bonds  and  mortgages 270 

Mere  delivery  as  a  pledge 271 

Full,  complete  assignment  and  transfer 272 

Pledge  distinguished  from  chattel  mortgage 273 

CHAPTER  IV. 

PLEDGOR'S  RIGHTS  AND  LIABILITIES. 

The  purpose  of  the  chapter 274 

Pledgor's  rights    275 

Pledgor  of  valuable  securities  —  Notes,  bonds,  mortgages,  etc.   276 


TABLE    OF    CONTENTS.  XV 

References  are  to  sections. 

The  pledgor  may,  under  certain  circumstances,  protect  the  pledged 

property  from  injury 277 

Pledgor's  interest  subject  to  judicial  process 278 

When  the  debt  secured  is  barred  by  statute  of  limitation 279 

When  will  the  statute  of  limitations  run  against  the  pledgor 280 

Tiie  pledgor's  right  to  redeem 281 

As  to  notice  of  intention  to  redeem 282 

The  pledgor  impliedly  warrants  the  title  of  the  pledged  property 283 

Rights,  duties  and  liabilities  of  the  pledgee  284 

The  possession 285 

The  pledge  an  incident  of  the  debt  secured  and  assignable 286 

Assignment  of  secured  debt  passes  equitable  interest  in  pledged  prop- 
erty   287 

Rights  of  assignee  subject  to  the  contract  of  pledge 288 

May  repledge  289 

Right  to  use  the  pledged  property 290 

Expenses  and  profits 291 

Liability  for  loss  and  damage 292 

Payment  of  debt  releases  pledged  property 293 

A  tender  of  the  amount  due  will  discharge  the  lien  of  the  pledge  ...  294 


CHAPTER  Y. 

THE  RIGHTS  AND  OBLIGATIONS  OF  THE  PLEDGOR  AND 
PLEDGEE  AFTER  DEFAULT. 

The  subject  and  its  discussion •. 295 

Section  I. 

Tlie  pledgee's  remedies 296 

The  pledge  security  not  lost  by  suit  and  judgment  on  the  debt 297 

Discharge  of  lien  by  tender  is  not  discharge  of  debt 298 

The  pledgee  maj'  attach  pledged  property  or  levy  his  execution  upon 

it,  but  waives  the  lien  of  the  pledge 299 

Defense  of  the  pledgor  to  action  of  pledgee  upon  the  debt  secured. . .  300 

Foreclosure  of  the  pledge  of  corporeal  property 301 

By  sale  under  the  power  contained  in  the  contract  of  pledge 302 

The  sale,  unless  otherwise  allowed  by  contract,  must  be  public 308 

The  notice  of  sale 304 

The  pledgee  cannot  be  purchaser  at  the  sale 305 

The  utmost  good  faith  demanded  in  the  matter  of  the  notice  of  sale  .  306 

Pledgor  cannot  compel  pledgee  to  sell  within  a  specified  time 307 

Surplus  in  the  hands  of  the  pledgee  —  Proceeds  of  the  sale 308 

Foreclosure  by  statutory  proceedings 309 

Foreclosure  in  equity ...     310 

The  notice  and  sale  by  virtue  of  decree 311 

When  the  pledgor  is  insolvent  or  a  banknu^t 312 


XVI  TABLE    OF    COI^TENTS. 

References  are  to  sections. 

Section  IL 
Rights,  remedies  and  liabilities  of  the  pledgor  and  pledgee  of  negotia- 
ble instruments  and  choses  in  action  after  default ...  313 

The  English  rule 314 

Eecourse  to  the  pledged  security 315 

The  pledgee's  diligence  in  collecting  the  securities 316 

Pledg'ee  may  recover  in  an  action  on  the  negotiable  securities 317 

Compromise 318 

Section  IIL 

Eights  and  liabilities  of  pledgee  of  stocks  and  bonds  of  corporations 

after  default 31& 

Stocks  held  by  brokers  purchased  on  margins 320 

Custom,  usage  and  course  of  business 321 

Foreclosure  of  the  pledge  where  stocks  are  held  on  margins 322 

Section  IV. 

The  rights  and  liabilities  of  the  pledgor  after  default 323 

The  pledgor  may  waive  irregularity 324 

Redemption  in  equity 325 

Equity  in  some  cases  will  take  jurisdiction 32& 

Accounting  for  the  pledged  property 327 

Termination  of  the  relation 32S 


PART  THIRD 
INNKEEPERS  AND  BOARDING-HOUSE  KEEPERS 


CHAPTER  I. 

INNS  AND  INNKEEPERS. 

An  inn 329 

Who  are  innkeepers. . .   330 

The  test 331 

Some  essential  characteristics 332 

Restaurants  and  cafes 333 

CHAPTER  II. 

GUESTS. 

Who  are  guests , ...  334 

How  far  traveled,  immaterial 335 

A  guest  or  a  boarder , 336 

Length  of  time  —  Contracts  for  rates  will  not  always  determine 337 


TABLE    OF    CONTENTS.  XVll 


References  are  to  sections. 


Personal  presence  of  the  guest 338 

The  furnishing  of  what  accommodations  necessary 339 

Mere  visitors 340 

Tiie  length  of  time  one  remains  immaterial 341 

The  purpose  for  which  one  uses  the  inn 843 

Who  must  the  innkeeper  receive  as  guests 343 

Limitations 344 

Liability  for  refusing  to  receive  a  guest 345 

May  refuse  to  receive , 346 

When  a  guest  is  taken  ill  with  contagious  disease 347 

Disorderly  conduct 348 

CHAPTEE  III. 

LIABILITY. 

(1)  Of  the  Innkeeper. 

Liable  as  an  innkeeper 349 

Tlie  extraordinary  liability  on  grounds  of  public  policy 350 

Liability  and  exceptions  analyzed 351 

Where  the  loss  is  occasioned  by  accidental  fire  and  not  in  any  way 

the  result  of  fault  or  neglect  of  the  innkeeper 353 

By  act  of  God  or  the  public  enemy  353 

By  irresistible  force  without  negligence  or  fault  on  the  part  of  the 

innkeeper 354 

Forcible  robbery,  riots,  etc. —  Diligence 355 

If  the  loss  is  occasioned  by  force  from  within 356 

By  reason  of  the  inherent  nature  of  tlie  property    357 

Tlirough  the  fault  of  the  guest,  his  servants  or  companions 358 

(3)  Of  the  Guest. 

Reasonable  regulations  of  the  inn , 359 

For  what  property  liable    360 

Must  be  a  guest  of  the  inn  and  the  property  within  the  inn 361 

Infra  honpithim 363 

Lost  by  theft 363 

If  a  boarder,  not  a  guest , 364 

Property  of  a  third  person 365 

Liable  to  corporation  for  loss  of  agent's  goods 366 

Exception  —  Goods  for  sale  or  show   367 

Liability  for  personal  injuries  to  guests 368 

Defective  or  unsound  condition  of  the  premises 369 

Injuries  fiom  tire 370 

Unsanitary  condition  of  the  inn  and  unwholesome  food , 371 

Limiting  liability 373 

Innkeeper  liable  as  ordinary  bailee 373 

Liable  as  gratuitous  bailee 374 


XVlll  TABLE    OF    CONTENTS. 

References  are  to  sections. 

CHAPTER  lY. 

COMPENSATION  AND  LIEN  OF  THE  INNKEEPER, 

Compensation  —  Lien 375 

The  lien  a  common-law  lien 376 

Amount  of  compensation 377 

If  the  guest  an  infant 378 

The  property  of  third  persons 379 

Same  subject 380 

The  guest  a  servant,  agent  or  bailee  of  the  owner 381 

Where  the  property  is  animate 382 

Where  the  guest  has  wrongfully  possessed  himself  of  the  property. . .  388 

The  lien  of  the  innkeeper  fixed  by  statute 384 

The  lien  lost  or  waived 385 

Cannot  be  revived 38G 

Boarding-house  keeper 387 


PART  FOUR 
POSTOFFICE  DEPARTMENT 


CHAPTER  I. 

POSTAL  SERVICE. 

Liability  of  postofiSce  department 388 

Postmasters 389 

Liability < 390 

Carriers  of  mail 391 


PART  FIVE 
CARRIERS 


CHAPTER  I. 

CARRIERS  —  GENERALLY. 

Definition 392 

As  to  the  history  of  carriers 393 

The  importance  and  scope  of  the  subject  «.  394 

Carriers  strictly  a  bailment  relation 395 

Carriers  are  of  two  kinds.   396 

Private  or  special  carriers 397 


.TABLE    OF    CONTENTS.  XIX 

References  are  to  sections. 

Duties  and  liabilities  of  private  antl  special  carriers 398 

The  carriage  of  goods,  or  property,  or  passengers  for  reward 399 

Increasing  or  diminishing  liability  by  contract  400 

Can  he  diminish  liability 401 

When  excused  from  liability  if  no  contract 403 

Compensation  and  lien  of  the  private  carrier 403 

Lien 404 

Special  or  private  carriers  without  hire  —  Gratuitous  service 405 

CHAPTER  II. 

PUBLIC  OR  COMMON  CARRIERS. 

Definition 406 

First  essential  requisite  —  The  important  and  distinguishing  essentials  407 

Second  essential  requisite  —  Determinate  of  the  relation 408 

The  true  test 409 

May  limit  the  employment  to  certain  kinds  of  property 410 

Third  essential  requisite  —  Carriage  must  be  for  hire 411 

Carriers  by  water  as  well  as  by  land 412 

Who  are  common  carriers 413 

Tugs  and  tow-boats 414 

Contrary  holdings 415 

Ferry-boats 416 

Carriers  by  land 417 

Hackmen  and  omnibus  men 418 

Truckmen,  cartmen  and  owners  of  wagons 419 

Street-car  companies 420 

Exjiress  companies 421 

Fast-freight  lines,  dispatch  companies,  etc ^. . . .  422 

Transfer  companies 423 

Railroad  companies 424 

Receivers  and  trustees 425 

Not  all  railroad  companies  common  carriers 426 

Who  are  not  common  carriers 427 

CHAPTER  III. 

CARRIERS  OF  GOODS  — SOME  ESSENTIALS  THAT  FIX  THE  LIA- 
BILITY OF  COMMON  CARRIERS. 

Object  of  the  chapter  —  Some  presumptions 428 

Certain  facts  must  be  proven 429 

Delivery  of  the  property  for  transportation 430 

The  place  of  delivery 431 

Usage  and  custom 432 

Actual  notice  of  deposit  of  goods 433 

Time  of  delivery 434 

By  whom  must  delivery  be  made  and  to  whom 435 

To  whom  must  delivery  be  made , 436 


XX  TABLE    OF    CONTENTS. 

References  are  to  sections. 

Facts  relied  upon  to  show  apparent  aiitliority  must  be  clear 437 

Agents  autliorized  to  receive 438 

Constructive  delivery 439 

Rules  permitting  constructive  delivery  must  be  applied  with  great 

caution 440 

CHAPTEE  lY. 

CARRIERS  OF  GOODS  — FIXING  THE  LIABILITY  OF  THE  CARRIER. 

The  object  of  the  chapter 441 

What  must  the  carrier  receive  and  carry 44^ 

Reasonable  regulations 443 

Other  legal  excuses  for  refusing  to  receive  goods 444 

Carrier  may  fix  time  and  place  for  receiving 445 

That  the  carrier  has  no  facilities  for  carrying  the  goods 44& 

Extraordinary  occasions  —  Press  of  business 447 

Carrier  not  permitted  to  arbitrarily  refuse  to  receive  and  ship 44f^ 

Equitable  proceedings  to  enforce  the  receiving  and  shipping  of  freight  449 

Acceptance  by  the  carrier 450 

When  delivery  and  acceptance  completed 451 

A  bill  of  lading  or  receipt  not  a  requisite  to  bind  carrier 453 

Action  for  refusal  to  accept  and  transport  goods 453' 

Tender  of  the  goods  and  payment  of  freight 454 

Who  may  sue 455- 

The  liability 456 

Duty  to  provide  proper  vehicles 457 

CHAPTER  Y 

"  FIXING  LIABILITY  OF  CARRIER— THE  BILL  OF  LADING. 

Description  and  office  of  the  bill  of  lading 458 

Its  negotiability 459 

The  consignor  consigns  goods  to  himself 460 

The  bill  of  lading  with  draft  attached 461 

Bill  of  lading  as  proof 462 

Authorities  not  entirely  harmonious 463- 

Conclusiveness  as  to  condition,  weight,  contents  or  value 464 

By  whom  issued 465 

CHAPTER  YL 

LIABILITY  AND  LIMITATIONS   UPON   THE    LIABILITY   OF   THE 
COMMON  CARRIER. 

Liability  of  the  common  carrier T. . .  466 

Reasons  for  extraordinary  liability 467 

Inanimate  and  ani  mate  freight    468^ 


TABLE    OF    CONTENTS.  XXI 
References  are  to  sections. 

I.  When  the  Loss  or  Injury  is  Caused  by  the  Act  of  God. 

The  act  of  God 469 

Does  not  always  excuse  the  carrier  from  all  care 470 

The  act  of  God  must  be  the  coaclusive  and  proximate  cause 471 

What  will  and  what  will  not  excuse  —  Summary 472 

Burden  of  proof 47S 

II.  By  the  Public  Enemy. 

The  public  enemy 474 

The  diligence  required  on  the  part  of  the  carrier 475 

Diligence,  even  though  the  property  is  injured  or  destroyed  after  the 

event  has  occurred 476 

Strikers,  rioters  and  robbers  not  the  public  enemy 477 

III.  Where  the  Loss  or  Injury  is  the  Result  of  the  Acts  of  the 

Shipper. 

Reasons  of  the  liability  of  the  carrier 478 

Contributory  negligence 479 

Improperly  marking  goods  by  the  consignor 480 

Goods  improperly  marked  or  loaded 481 

Neglect  of  the  shipper  to  disclose  contents  or  value 482 

Loss  from  mistake  or  intermeddling  on  the  part  of  the  shipper 483 

Negligence  of  the  carrier 484 

IV.  Where  the  Loss  or  Injury  is  Caused  by  the  Inherent  Nature 

of  the  Goods. 

The  exception 485 

Animate  freight 486 

V.  Carrying  of  Live  Stock. 

The  exception  applies 487 

Michigan  rule 488 

The  duty  of  the  common  carrier 489 

Statutes  of  United  States  with  reference  to  duties  of  the  carrier 490 

The  shipper  must  deal  fairly  with  the  carrier 491 

VI.  When  the  Loss  or  Injury  is  Occasioned  from  the  Exercise  of 

Public  Authority. 

The  reasons  for  the  exception 492 

CHAPTEK  VII. 

WHEN  THE   DAMAGE   OR   INJURY  IS   THE  RESULT  OF  DEVIA- 
TION OR  DELAY. 

Implied  undertaking  of  the  carrier 493 

Notice  to  the  carrier 494 

What  is  unreasonable  delay  —  How  avoided 495 

Reasonable  diligence 496 

Delav  occasioned  bv  deviation  from  route 497 


XXU  TABLE    OF    CONTENTS. 

References  are  to  sections. 

Loss  or  injury  occuri-ing  on  deviated  route  —  Act  of  God  or  pub- 
lic enemy,  etc ^98 

Often  duty  of  the  carrier  to  delay  or  deviate  from  course 499 

When  delay  and  deviation  on  account  of  strikes  or  riots .  500 

May  discriminate  as  to  shipping  perishable  goods % 501 

Duty  of  carrier  as  to  goods  after  disaster 502 

CHAPTER  VIIL 

CONTRACTS  REGULATING  THE  TRANSPORTATION  OF  GOODS. 

The  object  of  the  chapter 503 

Contracts  imposing  obligations  upon  the  carrier 504 

If  the  contract  is  to  carry  by  a  certain  route  or  in  a  certain  manner. .  505' 

By  a  certain  time 506 

If  the  contract  is  to  transport  by  water  it  cannot  be  fulfilled  by 

carrying  by  rail 50T 

When  the  change,  deviation  or  delay  from  the  stipulations  in  the  con- 
tract is  the  fault  of  the  shipper 508 

Contracts  limiting  the  liability  of  the  carrier ; 509 

Cannot  limit  liability  when  the  loss  is  the  result  of  the  negligence  of 

the  carrier  or  his  servants 510 

Rule  in  different  states  as  to  limitation  for  negligence 511 

Limiting  liability  as  to  amount 512 

The  consideration  of  contracts  limiting  liability 518 

Option  to  the  shipper  to  accept  contract  limiting  liability 514 

Contract  must  be  reasonable,  fair  and  without  fraud 515 

The  contract,  how  made ' 516 

Contract  limiting  the  time  in  which  to  present  claim  or  commence  suit  517 

Contract  limiting  liability  need  not  be  in  writing 518 

Construction  of  the  contract  limiting  liability 519 

Contracts  implied  from  notice 520 

Further  considei-ation 521 

General  notice  written  or  printed  upon  the  receipt  or  bill  of 

lading 522 

Representations  of  the  shipper,  fraudulent  or  otherwise 523 

When  the  contract  limiting  liability  inures  to  the  benefit  of  the  con- 
necting carrier 524 

Limiting  liability  in  England,  especially  by  notice 525 

The  result  of  this  act 526 

CHAPTEK  IX. 

LIABILITY  OF  THE  COMMON  CARRIER  (CONTINUED)  — CONNECT- 
ING CARRIERS. 

Liable  only  over  his  own  line  except  when  contract  is  for  further  lia- 
bility   527 

If  there  is  no  contract  as  to  liability  beyond  its  own  line 528 

The  English  rule 529 


TABLE    OF    CONTENTS.  XXlll 


References  are  to  sections. 


Denisions  of  states  not  harmonious  530 

Some  conditions  and  relations  from  wliich  contract  for  through  ship- 
ment may  be  implied 531 

Who  are  connecting  carriers 532 

Tlie  lelations  between  the  shipper,  the  initial  carrier  and  the  connect- 
ing carrier 533 

The  duty  of  the  connecting  carrier 534 

Authority  to  make  contract  binding  connecting  carriers 535 

Actions  for  loss  or  damage 536 

CHAPTER  X. 

COMPENSATION,  AND    HEREIN   OF   DISCRIMINATION  AND  LIEN 
OF  THE  CARRIER. 

Compensation 537 

Amount  depends  generally  on  goods  delivered 538 

Carrier's  special  security  in  and  right  to  possession  of  goods 539 

Carrier  may  protect  his  possession 540 

The  carrier  may  insure  the  goods 541 

When  can  the  carrier  sell  the  goods 543 

The  amount  charged  , 543 

Right  of  carrier  to  collect  its  advances  to  connecting  carriers 544 

Who  is  liable  to  the  carrier  for  the  freight 545 

Where  the  freight  is  only  carried  a  part  of  the  distance  contracted 

for  —  Pro  rata  itineris 546 

Where  goods  shipped  against  the  will  of  the  owner,  as  by  one  not  hav- 
ing the  right  to  ship 547 

Law  forbidding  applies  to  all  branches  of  carrier's  business  . .    548 

Relates  to  facilities  for  shipment 549 

The  discrimination  that  is  forbidden ;   550 

Regulation  by  statute  of  states 551 

The  interstate  commerce  act 552 

Similar  to  the  lien  of  the  bailee  —  Special,  not  general 553 

WJien  does  the  lien  attach 554 

AVhen  shipment  made  by  one  without  authority 555 

For  what  charges  will  the  lien  attach 556 

The  contract  for  shipment  must  be  fulfilled 557 

The  lien  how  lost,  satisfied  or  discharged. 558 

Lien  satisfied 559 

Lien  discharged 560 

CHAPTER  XI. 

TERMINATION  OF  THE  CARRIER'S  LIABILITY,  AND  HEREIN  HIS 
LIABILITY  AS  A  WAREHOUSEMAN  AND  HOW  DISCHARGED. 

Delivery  of  the  goods  to  the  consignee 561 

The  bill  of  lading ; 563 

Rules  as  to  the  delivery  applicable  to  all  carriers 563 


XXIV  TABLE    OF    CONTENTS. 

References  are  to  sections. 

The  requirements  of  the  carrier  upon  arrival  of  the  goods  at  destina- 
tion    564 

Eequireraents  as  to  delivery. 565 

When  an  express  company  becomes  warehouseman 56(3 

Express  company's  liability  as  warehouseman 567 

Dutj-  of  express  companies  when  goods  refused  by  consignee 568 

Goods  sent  C.  O.  D 569 

Where  consignee  fails  to  receive  the  goods  or  refuses  to  receive  them  570 

Right  to  inspect  the  goods  sent  C.  O.  D 571 

Carrier  may  assist  in  preventing  fraud  on  the  part  of  consignor 572 

Termination  of  liability 573 

Carrier  must  be  reasonably  diligent  in  giving  notice  to  consignee 574 

Must  provide  suitable  place  for  landing  and  caring  for  goods 575 

Notice  must  be  actual,  and  for  a  removal  of  goods  at  a  proper 

time  if  time  fixed 576 

Contract —  Usage  —  Course  of  dealing .577 

Usage  —  Course  of  dealing , 578 

Consignee  cannot  prolong  liability  as  carrier 579 

Termination  of  liabilijty ...  580 

Three  distinct  views 581 

The  Massachusetts  rule 582 

The  New  Hampshire  rule.   583 

The  rule  demanding  notice  to  consignee 584 

What  will  excuse  delivery 585 

Stoppage  in  transitu 586 

The  law  favors  the  right 587 

Some  requisites  to  the  right  to  exercise  stoppage  in  transitu 588 

How  exercised  —  Notice  by  whom  —  To  whom .  .589 

How  can  the  right  be  defeated 590 

Lien  of  the  carrier  for  freight  has  priority 591 

Stoppage  in  transitu  —  Duty  of  carrier  —  Termination  of  liability. . . .  592 


PART  SIX 
CARRIERS  OF  PASSENGERS 


CHAPTER  I. 

THE  RELATION  — WHO  ARE  PASSENGERS. 
The  relation  593 

Who  Are  Passengers. 

Definition ,«,  _  594 

The  status  fixed  more  or  less  by  intention 59,3 

Not  essential  that  the  person  should  be  in  the  vehicle  of  the  carrier. .  596 

Exjjress  messengers  and  mail  agents 537 


TABLE   OF    CONTENTS.  XXV 

References  are  to  sections. 

Mail  agents  and  passengers 598 

Drovers 599 

Workmen  and  employees 600 

Carrier  must  receive  the  person  as  a  passenger 601 

Persons  violating  reasonable  regulations 602 

Prepayment  of  fare 603 

Fraud  on  carrier C04 

Termination  of  the  relation ; . . . .  605 

Passengers  on  street-cars 606 

Reasonable  regulations      607 

Must  occupy  usual  place  provided  by  the  company 608 

CHAPTER  11. 

WHO  MUST  THE  CARRIER  ACCEPT  AND  CARRY,  AND  CERTAIN 
DUTIES  OF  CARRIERS  AND  PASSENGERS. 

§itasi-public  servants 609 

Exceptions  to  the  general  rule 610 

Carrier  must  protect  passengers 611 

Right  to  separate  passengers  according  to  sex 613 

Separation  of  races  a  reasonable  regulation 613 

Certain  Duties  Incumbent  Upon  the  Carrier. 

Imp  ied  obligation 614 

Vehicles,  machinery,  roadvsrays,  traclis,  etc 615 

Stational  facilities 616 

Duty  in  managing  and  running  its  trains  and  vehicles 617 

The  duty  of  passengers 618 

CHAPTER  III. 

THE  PASSENGER  CARRIER'S  LIABILITY. 

I.  General  Principles  Governing  Liability. 

The  purpose  of  the  chapter 619 

The  basis  of  the  liability 620 

Diligence  in  the  employment  of  servants 621 

Safe  and  sufficient  means  of  transportation 622 

Passenger  elevators 623 

Bound  to  adopt  most  approved  machinery 624 

Latent  defects 625 

English  rule 626 

Defects  discoverable  by  manulac-turer 627 

II.  Liability  Growing  Out  of  Duty  to  Passenger  While  In  Transit. 

The  degree  of  care  required 628 

Depots  —  Waiting-rooms  —  Approaches  and  exits  from  premises  and 

vehicles      .  .    629 

Same  subject 630 

Overloading  and  overcrowding  vehicles 631 


XXVi  TABLE    OF    CONTENTS. 

References  are  to  sections. 

Liability  of  carrier  for  abuse  of  passengers 632 

Fares  —  Ticljets  —  Contracts  for  carriage  683 

Where  the  carrier  or  agent  is  at  fault 634 

Exhibition  and  surrender  of  ticliets 635 

Lost  or  mislaid  tickets     .    636 

Stoi>over  tickets  —  Time  limit  —  Train  limit,  etc 637 

Tickets  over  connecting  lines  . .    638 

Delay  by  wreck  or  by  the  fault  of  the  carrier 639 

Tickets,  passes  and  other  transportation  fraudulently  obtained  or  fraud- 
ulently used '•••  640 

Sleeping-car  companies 64 1 

Not  liable  as  innkeepers 643 

III  Ejection  of  Passengers  and  Intruders  from  the  Vehicles  of  the 

Carrier. 

The  right  —  The  cause  —  The  manner  —  By  whom 643 

The  causes  numerous  . . 644 

Passenger's  reliance  upon  statements  and  promises  of  servants 

and  agents  of  the  carrier ■. . . .     645 

Tendering  fare  to  avoid  ejection 646 

The  manner  of  ejecting 647 

The  condition  of  the  passenger  must  be  taken  into  account 648 

IV.  When  the  Carrier  is  Excused. 

When  caused  by  the  act  of  God  649 

The  public  enemy 650 

Contributory  negligence 651 

Strangers,  trespassers,  intruders 653 

Failure  to  warn  passengers  of  danger     .    653 

A  question  of  fact  for  the  jury  or  of  law  for  the  court 654 

Whether  a  question  of  law  or  fact  655 

Same  subject  656 

When  excused 657 

Failure  to  perform  contract  of  carriage  within  stipulated  or  reason- 
able time  658 

CHAPTEK  IV. 

LIMITATION  OF  LIABILITY. 

Three  classes  of  holdings  by  the  court  659 

The  first  class:  Carrier  cannot  limit  liabilitj-  where  damage  results 

from  his  own  or  servant's  negligence.  ...  ...  .  .  660 

The  second  class:  Carrier  can  limit  liability  even  though  damage  the 

result  of  his  own  or  servant's  negligence 601 

The  third  class:  May  limit  for  negligence  but  not  for  gross  negligence  603 

The  weight  of  authority      .  r.  .  603 

Free  passes  —  Limitation  of  liability   for  injuries  to  persons  riding 

upon 064 

Limitations  growing  out  of  that  which  is  incident  to  the  carriage  . . .  605 


TABLE    OF    CONTENTS.  XXVll 

References  are  to  sections. 

CHAPTER  V. 

BAGGAGE  OR  THE  PASSENGER'S  EFFECTS. 

Kinds  of  baggage 666 

Ordinary  baggage  —  Definition 667 

(1)  The  station  in  life  of  tlie  passenger 668 

(2)  Tlie  business  or  occupation  of  the  traveler 669 

(3)  Object  of  tlie  journey 670 

(4)  The  effects  must  be  personal  to  the  traveler 671 

(5)  Must  be  reasonable  in  amount  for  the  journey  and  its  objects. . . .  672 
What  is  not  baggage , 673 

Sample  trunks  or  commercial  effects     674 

Payment  of  excess  baggage  675 

Reasonable  regulation 676 

Good  faith 677 

The  owner  of  the  baggage  should  be  a  passenger 678 

Should  the  owner  accompany  the  baggage? 679 

Baggage  of  one  riding  upon  a  free  pass 680 

Liability  of  the  carrier  for  baggage  under  his  exclusive  control 681 

Hand  baggage 682 

Sleeping-car  companies 683 

Liability  for  theft  of  servants 684 

A  high  degree  of  ordinary  diligence  required 685 

Mixed  custody  of  passenger  and  carrier  —  Is  the  liability  of  steamship 

company  and  innkeeper  the  same? 686 

The  baggage  of  a  steerage  passenger 687 

Temination  of  liability 688 

Failure  of  carrier  to  deliver  baggage 689 

CHAPTER  YI. 

ACTIONS  AGAINST  COMMON  CARRIERS. 
L  Actions  Against  Common  Carriers  of  Goods. 

The  basis  of  the  actions 690 

As  to  what  actions  will  lie 691 

Even  if  there  is  a  special  contract 692 

The  advantages  of  the  action  ex  delicto 693 

For  refusal  to  carry  the  goods 694 

The  parties  695 

The  consignee 696 

One  having  a  special  property  in  the  goods 697 

The  consignor 698 

The  defendant 699 

THE    PLEADINGS. 

Pleadings  follow  general  rules 700 

Defenses 701 


XXVIU  TABLE    OF    CONTENTS. 

References  are  to  sections. 
THE    PROOFS. 

What  proofs  should  be  adduced 703 

Negligence 703 

Defendant's  proofs 704 

DAMAGES. 

Of  what  they  generally  consist 705 

Actual,  exemplary,  punitive  or  vindictive  damages 706 

Exemplary  damages  confined  to  liberal,  compensatory  or  actual  dam- 
ages     707 

Liability  of  principal  or  master  for  acts  of  agents  or  servants. . .  708 

Damages  for  refusal  to  receive  and  transport 709 

For  loss  or  injury  in  transit 710 

Shipper  bound  by  the  value  placed  upon  his  goods  when  shipped 711 

Where  the  goods  are  not  merchandise  and  not  marketable 713 

Goods  shijjped  to  be  delivered  on  contract  of  sale 713 

Failure  to  deliver  at  time  specified  or  within  reasonable  time  — 

Reasonable  delay 714 

Failure  to  deliver  and  misdeliver 715 

IL  Actions  Against  Carriers  of  Passengers. 

Survival  of  actions  for  personal  injuries 716 

When  the  injury  does  not  result  in  death 717 

■     THE   pleadings. 

Base  1  upon  what 718 

The  answer  or  plea  of  the  defendant 719 

the  evidenck 

What  must  be  proven . 720 

Presumption  of  negligence 721 

Contributory  negligence 722 

damages. 

General  rules  applicable ,  723 

Proximate  or  remote  consequences 724 

Actual,  exemplary,  punitive  or  vindictive  damages 725 


J 


TABLE  OF  CASES. 


References  are  to  sections. 


Abbott  V.  Bradstreet,  686. 

Abram  v.  Piatt,  437. 

Actou  V.  Castle  Mail-packet  Co.,  633. 

Adams  v.  Clem,  373. 

Adams  v.  Buckland,  515. 

Adams  v.  Hannibal,  etc.  Co.,  657. 

Adams  v.  N.  J.  Steamboat  Co.,  333, 

686. 
Adams  Exp.  Co.  v.  Harris,  558. 
Adams  Exp.  Co.  v.  Schlessinger,  463. 
^tna  Ins.  Co.  v.  Jackson,  177. 
Agawara  Bank  v.  Strever,  235. 
Aiken  v.  Chicago,  etc.  R.  Co.,  452. 
Ains  worth  v.  Bo  wen,  307. 
Albian  v.  Presby,  362. 
Aldrich  v.  Great  Western  R.  Co.,  525. 
Alexander,  etc.  Co.  v.  Burke.  287, 301. 
Allan  V.  King,  243. 
Allan  V.  Williams,  257. 
Allan  V.  Railroad  Co.,  589,  590,  642. 
AUis  V.  McLean,  494. 
Alt  V.  Weldenberg,  66. 
Alvord  V.  Davenport,  47,  375. 
Ambler  v.  Ames.  297. 
American  Exp.  Co.  v.  Phillips,  488. 
American  Exp.  Co.  v.  Shier,  509. 
American  Exp.  Co.  v.  Stack,  561. 
American  Exp.  Co.  v.  Wolf.  368. 
American  Sugar  Refining  Co.  v.  Mc- 

Ghee,  534. 
American  Transp.  Co.  v.  Moore,  509, 

518. 
American  Roofing  Co.  v.  Memphis, 

etc.  Co.,  698. 
American  Steamship  Co.  v.  Bryan, 

686. 
Anderson   v.  Louisville,  etc.  R.    Co., 

613. 
Anderson  v.  Scholey,  721. 


Anderson  et  al.  v.  Carothers  et  al., 

276. 
Andrews  v.  Richmond,  24. 
Androscoggin    R.     Co.    v.     Auburn 

Bank.  291. 
Angle  &  Co.  v.  Railroad  Co.,  530. 
Annis  v.  Railroad  Co.,  663,  664. 
Apsey  V.  Railroad  Co.,  654. 
Arbuckle  v.  Thompson,  696. 
Archer  v.  Ft.  Wayne,  etc.  Co.,  608. 
Arclier  v.  McDonald,  143. 
Armour  et  al.  v.  Mich.  Cent.  R  Co., 

463. 
Armstrong  v.  McLean,  298. 
Armstrong  v.  Railroad  Co.,  544* 
Arnold  v.  Railway  Co.,  603. 
Ashbey  v.  West,  63. 
Ashmore     v.    Pennsylvania    Steam 

Towing  Co.,  414,  509. 
Ashton  v.    Detroit  City  R.   Co.,  657. 
Atchison,  etc.  R.  Co.  v.  Dill,  515. 
Atchison,  etc.  R.  Co.  v.  Gants,  643. 
Atchison,  etc.  R.  Co.  v.  Temple,  510. 
Atkins  V.  Colby,  586. 
Atkins  V.  Gamble,  61. 
Atkinson  v.  Abraham,  369. 
Attorney-General  v.  Chicago,  etc.  R 

Co.,  550. 
At  water  v.  Railway  Co.,  609. 
Atwater  v.  Sawyer,  343,348,  368,  609. 
Atwell  V.  Miller,  462. 
Audenreid  v.  Railroad  Co.,  549. 
Auerbach  v.  Railway  Co.,  638. 
Aurentz  v.  Porter,  199. 
Austin  V.  Curtis,  313. 
Avinger  v.  Railroad  Co.,  426. 
Babcock  v.  Wyman,  252. 
Bacharach  v.  Chester  Freight  Line, 

553. 


XXX 


TABLE    OF   CASES. 


References  are  to  sections. 


Bailey  v.  Colby.  80,  133,  213,  286. 

Bailey  v.  Damon,  554. 

Bailey  v.  Gould,  271. 

Baird  v.  Daly,  132. 

Baker  v.  Born,  24. 

Baker  v.  Briggs.  307. 

Baker  v.  Dessaner,  352. 

Baker  v.  Drake,  322. 

Balentine  v.  Railroad  Co.,  447. 

Ball  V.  Liney,  61. 

Ball  V.  Railway  Co.,  632. 

Ball  V.  Stanley,  294. 

Baldwin  v.  American  Exp.  Co.,  561. 

Baldwin  v.  Bradley,  234,  237. 

Ballon  V.  Earle,  511. 

Baltimore,  etc.  R.  Co.  v.  Bambray, 

634. 
Baltimore,  etc.  R.  Co.  v.  Barger,  632. 
Baltimore,  etc.  R.  Co.  v.  Brown,  462. 
Baltimore,  etc.  R.  Co.  v.  Crawford, 

513. 
Baltimore,  etc.  R.  Co.  v.  Express  Co., 

544. 
Baltimore,  etc.  R  Co.  v.  Humphrey, 

561. 
Baltimore,  etc.  R.  Co.  v.  State,  598, 

623. 
Baltimore,  etc.  R.  Co.  v.  Voigt,  597. 
Baltimore,  etc.  R  Co.  v.  Worthing- 

ton,  721. 
Bancroft  v.  Peters,  559. 
Bank  v.  Brown.  673,  681. 
Bank  v.  Gilmartin,  198. 
Bank  v.  Jackson.  300. 
Bank  v.  Marshall,  300. 
Bank  v.  Roberts,  317. 
Bank  of  Alexandria  v.  Herbert,  312. 
Bank  of  America  v.  McNeil,  249. 
Bank  of  Buffalo  v.  Kortright,  250. 
Bank  of  Chadron  v.  Anderson,  242. 
Bank  of  Kentuckj'  v.  Adams  Exp.  Co., 

422. 
Bank  of  Oswego  v.  Doyle,  210. 
Bank  of  Rochester  v.  Colt,  179. 
Bar  V.  Cain,  316. 
Barker  v.  Havens,  553. 
Barnard  v.  Campbell,  260. 
Barnes  v.  Bradley,  297. 
Barnes  v.  McCrea.  24. 
Barney  v.  O.  B.  &  H.  S.  S.  Co.,  610. 


Barnowski  v.  Nelson,  721. 

Barron  v.  East  Boston  Ferry  Co.,  623. 

Barron  v.  Eldridge,  182,  183,  439,  567. 

Barron  v,  Landis,  53. 

Bartlett  v.  Carnley,  554. 

Bartlett  v.  Railway  Co.,  509. 

Bartlett  v.  Walter,  177. 

Bass  V.  Railroad  Co..  612. 

Bassett  v.  Railroad  Co.,  183. 

Batavia  Bank  v.  Railroad  Co..  463. 

Bates  V.  Railroad  Co.,  661. 

Batton  V.  Railroad  Co.,  632. 

Baugh  V.  Kirkpatrick,  278. 

Baxter  v.  Hartford  Ins.  Co.,  177. 

Bay  V.  Coddington.  244 

Bayles  v.  Railroad  Co.,  550. 

Bealle  v.  Southern  Bank,  243. 

Beard  v.  Dedolph,  242. 

Beard  v.  Railroad  Co.,  452,  457. 

Beatty  v.  Silveston,  326. 

Becker  v.  Hallgarten,  590. 

Becker  v.  Haynes,  367. 

Becker  v.  Warner,  358. 

Beckwith  v.  Sibley.  296. 

Bedle  v.  Morris,  366. 

Beecher  v.  Wells  Flouring-Mills  Co., 
250. 

Beers  et  ux.  v.  Railway  Co.,  679. 

Belden  v.  Perkins.  286,  289. 

Belding  v.  Manley,  317. 

Belfast  V.  Railroad  Co.,  673. 

Belger  v.  Dinsmore,  512,  522. 

Bellows  V.  Wells,  226. 

Bells  V.  Chicago,  etc.  R.  Co.,  488. 

Bellsdyke  Coal  Co.  v.  Railroad  Co., 
550. 

Benedict  v.  Schaettle.  588. 

Bennett  v.  American  Transp.  Co.,  452. 

Bennett  v.  Button,  520,  609. 

Bennett  v.  Mellor,  340.  366. 

Bennett  v.  Railroad  Co.,  500. 

Bennett  v.  The  Guiding  Star,  480. 

Berkshire  Woolen  Mills  Co.  v.  Proc- 
tor, 337,  349,  352,  360,  366. 

Bernard  v.  Campbell,  260. 

Bernard  v.  Knobbs,  63. 

Bernstein  v.  Sweeney,  372. 

Berry  v.  Railroad  Co.,  513. 

Betts  V,  Railroad  Co.,  489. 

Bevan  v.  Waters.  163. 


TABLE    OF    CASES. 


XXXI 


References  are  to  sections. 


Bevis  V.  Railroad  Co.,  641. 

Biddle,  etc.  Co.  v.  Railroad  Co.,  404. 

Biebinger  v.  Continental  Bank,  293. 

Bigelow  V.  Heaton,  558. 

Bigelow  V.  Walker,  300. 

Bigelow  V.  West  End  Street  Car  Co., 

606. 
Biggs  V.  Lawrence,  229. 
Billings  V.  Jane,  242. 
Bingham  v.  Rogers,  520. 
Bissell  V.  New  York  Cent.  R.  Co.,  411, 

487. 
Bissell  V.  Pearce,  163,  165. 
Bissell  V.  Price,  462,  544. 
Bissell  V.  Railroad  Co.,  661,  664. 
Bixby  V.  Dunlap,  707. 
Black  V.  Ashley,  184,  581. 
Black  V.  Baxendale,  574. 
Black  V.  Brennan,  379. 
Black  V.  Goodrich  Transp.  Co.,  519. 
Black  V.  Railroad  Co.,  470,  509. 
Blackmere  v.  Railroad  Co.,  606. 
Blackmore  v.  Railroad  Co.,  597. 
Blackstock  v.  Railroad  Co.,  574. 
Blair  v.  Railroad  Co.,  597. 
Blaisdell  v.  Railroad  Co.,  183. 
Blake  v,  Kimball,  199. 
Bl  ami  res  v.  Railroad  Co.,  629. 
Blanchard  v.  Dedham  Gas  Co.,  251. 
Blanchard  v.  Isaacs,  431,  437. 
Blanchard  v.  Page,  179,  545,  696,  698. 
Blanchard  v.  Stevens,  244. 
Bland  v.  Adams  Exp.  Co.,  474. 
Bland  v.  Railroad  Co.,  646. 
Blinn  v.  Mayo,  186,  187,  204. 
Bloomer  v.  Henderson,  270. 
Blum  V.  The  Caddo,  697. 
Blum  V.  Pullman  Car  Co.,  641,  642. 
Blytlie  et  al.  v.  Railroad  Co.,  471,  472. 
Boardman  v.  Holmes,  234,  237. 
Boatman's  Savings  Bank  v.  West,  etc. 

R.  Co.,  562. 
Bobo  V.  Patton,  198.  ' 
Bodwell  V.  Bragg,  372. 
Bogert  V.  Haight,  204. 
Boggess  V.  Railroad  Co.,  653. 
Boggs  &  Russell  v.  Martin,  558. 
Bolt  V.  Stennett,  543. 
Bonce  v.  Railroad  Co.,  418. 
Bonney  v.  Railroad  Co.,  456. 


Boorman  v.  Express  Co.,  509. 

Boscowitz  V.  Adams  Exp.  Co.,  457. 

Boston,  etc.  R.  Co.  v.  Shanley,  444. 

Boston  Music  Hall  Ass'n  v.  Cory,  251. 

Bostwick  v.  Railroad  Co.,  515. 

Bottenberg  v.  Nixon,  211. 

Bowlin  V.  Lyon.  343. 

Bowman  v.  Teall,  469. 

Bowman  v.  Wood,  318. 

Boyce  v.  Anderson,  543. 

Boylan  v.  Railroad  Co.,  633. 

Bradley  v.  Parks,  286. 

Bradshaw  v.  Railroad  Co.,  637. 

Braithwaite  v.  Powers,  546. 

Brass  v.  Braitland,  444. 

Brass  v.  Worth,  303. 

Braum  v.  Railroad  Co..  644. 

Brennan  v.  Fairhaven,  653. 

Brennan  v.  Railroad  Co.,  647. 

Bretherton  v.  Wood,  691. 

Bretz  V.  Diehle,  24,  211. 

Brewer  v.  Railroad  Co.,  597. 

Brewster  v.  Hartley,  246. 

Brick  V.  Brick,  252. 

Bricker  v.  Railroad  Co.,  601,  603. 

Bridgeman  v.  Steamboat  Emily,  456. 

Brien  v.  Bennett,  596. 

Briggs  V.  Walker,  278. 

Brind  v.  Dale,  439. 

Brintnell  v.  Railroad  Co.,  530. 

Broadwell  v.  Howard,  179. 

Broadwood  v.  Granara,  165. 

Brook  V.  Pickwick,  520. 

Brooklyn  Bank  v.  De  Grauw,  294 

Brooks  V.  Railroad  Co.,  463. 

Brough's  Estate,  312. 

Brower  v.  The  Water  Witch.  453. 

Brown  v.  Adams  Exp.  Co.,  513,  714. 

Brown  v.  Bowen,  463. 

Brown  v.  Clegg,  415. 

Brov.'n  v.  Cunard  S.  S.  Co.,  513. 

Brown  v.  Express  Co.,  509,  520. 

Brown  v.  Grand,  671. 

Brown  v.  Had  ley,  494. 

Brown  v.  Railroad  Co.,  431,  517. 

Brown  Hotel  Co.  v.  Burckhardt,  459. 

Brownell  v.  Chapman,  494. 

Browning  v.  Goodchild,  390. 

Bruce  v.  Smith,  249. 

Br u  ley  v.  Rose,  74. 


xxxu 


TABLE    OF    CASES. 


References  are  to  sections. 


Brush  V.  Railroad  Co.,  664 

Bryan  v.  Baldwin,  SOo. 

Bryan  v.  Railroad  Co.,  617,  660,  664 

Bryans  v.  Nix.  179. 

Bryant  v.  Railroad  Co.,  489. 

Bryson  v.  Rayner,  326. 

Buck  V.  Railroad  Co.,  629. 

Buck  et  al.  v.  lugersoll,  299. 

Buckingham  v.  Fisher,  204 

Buckland  v.  Adams  Exp.  Co.,  421,  522. 

Buckley  v.  Garrett,  234 

Buckley  v.  Great  Western,  581. 

Buckley  v.  Naumkeag  Co.,  462. 

Buckley  v.  Railroad  Co.,  184 

Buckman  v.  Levi.  439. 

Buffington  v.  Curtis,  255. 

BuUard  v.  Billings,  286. 

Bullock  V.  Adair,  339. 

Burbank  v.  Chapin,  359. 

Burdick  v.  Murray,  65. 

Burgess  v.  Clements,  368. 

Burlington  v.  Arms,  581. 

Burnell  v.  Railroad  Co.,  206. 

Burnham  v.  Young,  352. 

Burnstein  v.  Sweeney,  339. 

Burroughs  v.  Norwich,  etc.  R.  Co., 

530. 
Bursley  v.  Hamilton,  20,  53. 
Burton  v.  Curyea,  179,  259,  262. 
Burton  v.  Wilkerson,  63. 
Bush  v.  Lyon,  277. 
Buskirk  v.  Purington.  555. 
Buskirk  v.  Roberts,  658. 
Bussey  v,  Mississippi  Valley  Transp. 

Co.,  415. 
Butler  V,  Railroad  Co.,  487,  674 
Caldwell  v.  New  Jersey  S.  S.  Co.,  624 
Calhoun  v.  Thompson,  63. 
California  Powder  Works  v.  Railroad 

Co.,  514 
Calye's  Case,  359,  368. 
Camp  V.  Steamship  Co.,  509. 
Campbell  v.  Perkins.  681. 
Campbell  v.  White,  220. 
Canadian  Pacific  R.  Co.  v.  Johnston, 

602. 
Canal  &  Banking  Co.  v.  Lewis,  317. 
Canfield  v.  Minnesota,  etc.  Co.,  303. 
Cannon  River  Mfg.  Co.  v.  First  Nat. 

Bank,  99. 


Cantwell  v.  Pacific  Express  Co.,  493. 
Capehart  v.  Granite  Mfg.  Co.,  433. 
Carey  v.  Railroad  Co.,  716. 
Carnley  v,  Cohen,  177. 
Carpenter  v.  Longan,  270. 
Carpenter  v.  Railroad  Co.,  685. 
Carpenter  v.  Taylor,  332. 
Carpue  v.  Railroad  Co.,  721. 
Carroll  v.  MuUanphy  Savings  Bank, 

249. 
Carroll  v.  Railroad  Co.,  660. 
Carter  v.  Hobbs,  339,  367,  373. 
Case  V.  Waterhouse,  161. 
Casey  v.  Gaveroc,  238,  239,  812. 
Casey  v.  Schneider,  241. 
Cash  V.  Railroad  Co.,  487. 
Cashill  V.  W' right,  359. 
Cass  V.  Railroad  Co.,  43. 
Caswell  V.  Railroad  Co.,  596. 
Cathcart  v.  Snow.  176. 
Cavallo  V.  Railroad  Co.,  586. 
Caye  v.  Fabel.  Assignee,  etc.,  558. 
Cecil  Savings  Bank  v.  W^atsontown 

Bank,  249. 
Central  Ga.  Ry.  Co.  v.  Lippman,  468, 

660. 
Central  Ry.  Co.  v.  Bayer,  536. 
Centi'al  Ry.  Co.  v.  Hasselkus,  516. 
Central  R.  &  Banking  Co.  v.  Georgia 

F.  &  V.  Exch.  Co.,  531. 
Central  Ry.  Co.  v.  Crudup,  664 
Central  Trust  Co.  v.  Clark.  724 
Chamber  of  Commerce  v.  Goodman, 

220. 
Chamberlain  v.  Cobb,  121. 
Chamberlain  v.  West,  58.  366. 
Chapin  v.  Railway  Co..  462,  464. 
Chapman  v.  Allan,  163. 
Chapman  v.  Brooks,  286. 
Chapman  v.  First  Nat.  Bank,  165. 
Chase  v.  Corcoran,  71. 
Chase  v.  Washburn.  24  163,  211. 
Chase  v.  Westmore,  163. 
Chattanooga  Ry.  Co.  v.  Huggins,  603. 
Cheever  v.  Myer,  251. 
Chesapeake    Ry.    Co.    v.   American 

Exch.  Bank,  489. 
Chesapeake  Ry.  Co.  v.  Clowes,  631. 
Chesapeake  Ry.  Co.  v.  King,  605. 
Chesapeake  Ry.  Co.  v.  "Wells,  613. 


TABLE   OF    CASES. 


xxxiu 


References  are  to  sections. 


Chicago,  etc.  Ry.  Co.  v.  Bills,  642. 
Chicago,  etc.  Ry.  Co.  v.  Cassazza,  647. 
Chicago,  etc.  Ry.  Co.  v.  Chapman.  510. 
Chicago,  etc.  Ry.  Co.  v.  Frazer,  602. 
Chicago,  etc.  Ry.  Co.  v.  Harmon,  512. 
Chicago,  etc.  Ry.  Co.  v.  Jenkins,  581. 
Chicago,  etc.  Ry.  Co.  v.  MilJer,  711. 
Chicago,  etc.  Ry.  Co.  v.  Munfortl,  530, 

055. 
Chicago,  etc.  Ry.  Co.  v.  People,  550. 
Chicago,  etc.  Ry.  Co.  v.  Postin,  724. 
Chicago,  etc.  Ry.  Co.  v.  Sliea,  482, 
Chicago,  etc.  Ry.  Co.  v.  Stewart,  596. 
Cliicago,  etc.  Ry.  Co.  v.  Tiirappe,  446. 
Chicago,  etc.  Ry.  Co.  v.  Union  Packet 

Co.,  558. 
Chicago,  etc.  Ry.  Co.  v.  Wallace,  426. 
Chicago,  etc.  Ry.  Co.  v.  Williams,  613. 
Chicago,  etc.  Ry.  Co.  v.  Winters,  605. 
Cliicago  et  al.  v.  Sawyer.  469. 
Chicago  Fifth  Nat.  Bank  v.  Bayley, 

256. 
Chickering  v.  Fowler,  573. 
Chidister  v.  Consolidated  Ditch  Co., 

471. 
Chilton  V.  Railway  Co.,  612. 
Chouteaux  v.  Leech  Co.,  502. 
Christenson  v.  American  Exp.  Co., 

421. 
Christie  v.  Griggs,  614,  625. 
Cliristie  v.  Railwaj'  Co.,  550. 
Christie  v.  Smith,  390. 
Churchill  v.  Railway  Co.,  637. 
Cicotte  T.  Gagnier,  270. 
Cincinnati  Ry.  Co.  v.  Cooper,  204,  581. 
Cincinnati  Ry.  Co.  v.  McCool,  204, 581. 
Cincinnati  Ry.  Co.  v.  Skillman,  646. 
Citizens'  Bank  v.  Peacock,  262. 
Citizens'  Bank  v.  Steamship  Co.,  406, 

410,411,543. 
Citizens'  Ry.  Co.  v.  Hoffbauer,  657. 
Citizens'  Ry.  Co.  v.  Twiname,  420. 
(  ity  Bank  v.  Railway  Co.,  255. 
City  Fire  Ins.  Co.  v.  Olmstead,  238. 
Civil  Rights  Cases,  612,  613. 
Claflin  V.  Myer,  173,  206. 
Clandaniel  v.  Tuckerman,  538. 
Clai)p  V.  Nelson,  80. 
Clark  V.  Burns,  333,  086. 
Clark  V.  Geer,  664. 


Clark  V.  Henry,  281. 

Clark  V.  McDonnell,  593. 

Clark  V.  Needles,  182,  494. 

Clark  V,  Railway  Co.,  383,  487,  488. 

Clark  V.  Whitaker,  47. 

Cleghorn  v.  Railway  Co.,  708. 

Cleveland,  etc.  Ry.  Co.  v.  Best,  602. 

Cleveland,  etc.  Ry.  Co.  v.  Clos.se r,  550. 

Cleveland,  etc.  Ry.  Co.  v.  Curran,  599, 

660. 
Cleveland,  etc.  Ry.  Co.  v.  Ketchara, 

598. 
Cleveland,  etc.   Ry.   Co.   v.   Newell, 

517.  721. 
Cleveland,   etc.    Ry.  Co.   v.  Newlin, 

517. 
Clugas  v.  Penaluna,  229. 
Clute  V.  Wiggins,  360,  362,  363. 
Cobb   V.  Railway  Co.,  456,  495,  709, 

713. 
Cobb  V.  Wallace,  80,  213. 
Cobban  v.  Downe,  188. 
Coddington  v.  Bay,  244. 
Coffie  V.  Railway  Co.,  676. 
Coger  V.  Packet  Co.,  612. 
Coggs  V.  Bernard,  1,  86,  126,  218,  294, 

467,477,559,691. 
Cohen  v.  Frost.  687. 
Cohen  v.  Manuel,  360. 
Cohen  v.  Moshkowitz,  143. 
Cole  V.  Goodwin,  520,  525,  681. 
Collett  V.  London,  etc.  Co.,  597. 
Collins  V.  Bennett,  47. 
Collins  V.  Bristol,  etc.  R.  Co.,  530. 
Collins  V.  Burns,  210. 
Collins  V.  Railway  Co.,  678,  679. 
Colt  V.  Ives,  251. 
Colville  V.  Loud,  309. 
Colyar  v.  Taylor.  99,  405. 
Commercial  Bank  v.  Pfeiffer,  256. 
Commonwealth  v.  Hide  &  Leatlier 

Co..  541. 
Commonwealth  v.  Power,  613. 
Commonwealth  v.  Vermont,  etc.  Ry. 

Co.,  597. 
Coinstock  v.  Hier,  244. 
Condon  v.  Railway  Co.,  534. 
Condran  v.  Railway  Co.,  604.  640. 
Cougar  v.  Railway  Co.,  480,  483,  632, 

696. 


XXXIV 


TABLE    OF    CASES. 


References  are  to  sections. 


Connolly  v.  Street  Car  Co.,  648. 

Connor  v.  Chase,  253. 

Connor  v.  Citizens'  Ry.  Co.,  655. 

Converse  v.  Transp.  Co.,  450. 

Conway  v.  Mitchell,  724. 

Cook  V.  Gourdin,  610. 

Cook  V.  Kansas  City  Ry.  Co.,  489. 

Cooke  V.  Kane,  379. 

Cooley  V.  Board  of  Wardens,  613. 

Coombs  V.  Warren,  242. 

Coojjer  V.  Raleigh,  etc.  Ry.  Co.,  487. 

Cooper  V.  Railway  Co.,  636. 

Cooper  V.  Simpson,  307. 

Corn  Exchange  Bank  v.  American 

Dock  &  Trust  Co.,  179. 
Cornell  v,  Hichens,  270. 
Coskery  v.  Nagle.  362. 
Costello  V.  Laths,  464. 
Coup  V.  Railway  Co.,  427. 
Coupland  v.  Railway  Co.,  489. 
Covington  Stockyards  Co.  v.  Keith, 

489. 
Cowles  V.  Pointer,  204. 
Cox  V.  O'Reilly,  186. 
Cox  V.  Railway  Co.,  510,  517. 
Coykendall  v.  Eaton,  338,  366. 
Cragin  et  al.  v.  Railway  Co.,  452,  487. 
Crane  v.  Gough,  241. 
Crawford  v.  Railway  Co.,  636. 
Crawford  v.  Southern  R.  etc.  Co.,  530. 
Cream  City  Ry.  Co.  v.  Railway  Co., 

519. 
Creamer  v.  West  End  Street-Car  Co., 

606. 
Croft  V.  Bunster,  270. 
Cromwell  v.  Stevens,  329,  333. 
Cronkite  v.  Wells,  445,  450. 
Crosby  v.  Fitch,  469,  498. 
Cross  V.  Andrews,  349. 
Cross  V.  Brown,  199. 
Cross  V.  Eureka,  etc.  Co.,  280. 
Cross  v.  Railroad  Co.,  629. 
Cross  V.  Wilkins,  163,  387. 
Crossan  v.  Railway  Co.,  556. 
Crouch  V.  Railway  Co.,  444. 
Grouse  v.  Railway  Co.,  724. 
Crump  V.  Mitchell,  80. 
Crystal  Palace  v.  Vanderpool,  686. 
Cully  V.  Railway  Co.,  613. 
Cummings  v.  Harris,  163. 


Cummings  v.  Gann,  199. 

Cunningham  v.  Buckey,  356,  358. 

Currey  v.  Roulstone,  590. 

Curtis  V.  Leavitt.  286. 

Curtis  V.  Murphy,  336,  342. 

Curtis  V.  Railway  Co.,  679. 

Gush  man  v.  Thayer  Mfg.  Co.,  249. 

Cutler  v.  Bonney,  349,  352,  356. 

Cutler  V.  Smith,  706. 

Cutting  V.  Railway  Co.,  710,  714. 

Dale  V.  Hall,  691. 

Dale  V.  See,  61,  159. 

Dalman  v.  Konning,  606. 

Dane  et  al.  v.  Old  Colony  R.  Co.,  558. 

Danforth  v.  Grant,  390. 

Danforth  v.  Semple,  233. 

Dangerfield  v.  Atchison,  633. 

Dansey  v.  Richardsen,  364. 

Da  Ponte  v.  New  Orleans  Transfer 

Co.,  423. 
Darlmg  v.  Railway  Co.,  580. 
Dasch  v.  Railway  Co.,  656. 
Davidson  v.  Graham,  .520. 
Davis  v.  Bradley.  179. 
Davis  v.  Chicago,  etc.  Ry.  Co.,  660. 
Davis  V.  Garrett,  476,  499. 
Davis  V.  Lane,  243. 
Davis  V.  New  York,  etc.  Ry.  Co.,  716. 
Davis  V.  People,  233. 
Davis  V.  Railway  Co.,  677. 
Davis  V.  Wabash  Ry.  Co.,  471. 
Dawley  v.  Palace  Car  Co.,  682,  683. 
Daws  V.  Peck.  695.  698. 
Dawson  v.  Clianny,  349. 
Dawson  v.  Sloan,  369. 
Day  V.  Coddington,  244 
Day  V.  Owen,  613,  613. 
Day  V.  Woodworth,  706. 
Dayton  Nat.  Bank  v.  Merchants'  Nat. 

Bank,  293. 
Dean  v.  Driggs.  179. 
Dean  v.  King,  464. 
Dearborn  v.  Taylor,  271. 
De  Cordova  v.  Barnum,  297. 
Delano  v.  Bennett,  371. 
Del  Valle  v.  Richmond,  686. 
Deming  v.  Merchants',  etc.  Ca,  439, 

513,  515. 
DeMott  &Ingersoll  v.  Larawaj-,  201. 
Denny  v.  Railway  Co.,  427. 


TABLE    OF    CASES. 


XXXV 


References  are  to  sections. 


Denston  v.  Jackson,  322. 
Denver  v.  Sherrett,  724. 
Denver,  etc.   Ry.  Co.  v.  Frame,  697, 

712. 
Despard  v.  Walbridge,  252. 
Detrich  v.  Railway  Co.,  687. 
Detroit,  etc.   Ry.  Co.    v.   McKensie, 

580,  556. 
Detroit,  etc.  Ry.    Co.  v.  Van  Stein- 
berg, 655. 
Devereux  v.  Buckley,  714. 
Devoin  v.  Lumber  Co.,  47. 
Dewart  v.  Masser,  282. 
Dibble  v.  Morgan,  471,  575. 
Dickenson  v.  Winchester,  362,  366. 
Dickerman  v.  Union  Depot  Co..  635. 
Dickey  v.  Pocomoke  City  Nat.  Bank, 

241. 
Dillard  v.  Railway  Co.,  513. 
Dimick  v.  Railway  Co.,  204. 
Dimmey  v.  Railway  Co.,  657. 
Dixon  V.  Railway  Co.,  430,  431. 
Dixon    V.   Richmond,   etc.    Ry.    Co., 

457,  536. 
Dixon  V.  The  Surrey,  577. 
Doak  V.  Bank,  325. 
Dodge  V.  Steamship  Co.,  665. 
Dodgson  V.  Henderson,  233. 
Dole  V.  Olmstead,  178. 
Domestic,  etc.  Co.  v.  Watters,  379, 

383. 
Donald  v.  Suckling,  288. 
Donnell  v.  The  Starlight,  163. 
Donohoe  v.  Gamble,  313. 
Dorr  v.  New  Jersey  Steam  Nav.  Co., 

520. 
Douglas  V.  Reynolds,  235. 
Douglas  V.  People's  Bank,  562. 
Dow  V.  Greene,  259. 
Dowe  V.  Winnipesaukee  Gas  Co.,  724. 
Down  V.  Fromont,  525. 
Downey  v.  Railway  Co.,  708. 
Downing  v.  Outerbridge,  707. 
Dows   v.  Nat.  Exchange  Bank,  253, 

562. 
Dows  V.  Perrin,  264. 
Doyle  v.  Railway  Co.,  600,  601,  664. 
Drake  v.  White,  59,  274. 
Drew  V.  Railway  Co.,  637. 
Ducker  v.  Barnett,  175. 


Duff  V.  Budd.  563. 

Duff  V.  Railway  Co.,  597,  606. 

Dunbar  v.  Day,  352. 

Dunbar  v.  Gregg,  189. 

Duncan  v.  Benson,  542. 

Duncomb  v.  Railway  Co.,  16,  243, 286, 

317. 
Dundas  v.  Lansing,  654. 
Dunham  v.  Lee,  64,  80. 
Dunlap  V.  Gleason,  213. 
Dunlap  V.  Limes,  244. 
Dunlop  V.  Hunting,  80. 
Dun  lop  V.  Monroe,  389. 
Dunn  V.  Railway  Co.,  665. 
Dupay  V.  Gibson,  310. 
Dupre  V.  Fall,  277. 
Durant  v.  Einstein,  310,  326. 
Durfee  v.  Newkirk,  706. 
Durgin  v.  American  Exp.  Co.,  516. 
Duvenick  v.  Railway  Co.,  513. 
D wight  V.  Brewster,  406,  421. 
Dwinelle  v.  Railway  Co.,  632. 
Dyer  v.  Grand  Trunk,  etc.  Ry.  Co., 

553. 
Dykers  v.  Allan,  303. 
Eagan  v.  A  Cargo  of  Spruce  Lath, 

558. 
Eastern  Ry.  Co.  v.  Relief  Fire   Ins. 

Co.,  177,  541. 
East  Tennessee,  etc.  Ry.  Co.  v.  Kelly, 

481. 
East  Tennessee,  etc.  Ry.  Co.  v.  Nel- 
son, 534. 
Eastman  v.  Maine  Cent.  Ry.  Co.,  633. 
Easton  v.  German  American  Bank, 

307. 
Eaton  V.  Railway  Co.,  602. 
Eaton  et  al.  v.  Cook,  590. 
Edgerton  v.  Railway  Co.,  721. 
Edrington  v.  Harper,  252. 
Edwards  v.  Lord,  625. 
Edwards  v.  Railway  Co.,  633. 
Efrom  v.  Pullman  Car  Co.,  685. 
Eia  V.  American,  etc.  Exp.  Co.,  561. 
Elder  v.  Rouse,  296,  313. 
Elkins  v.  Railway  Co..  58,  699. 
Elliot  V.  Russell  &  Lewis,  699. 
Ellsworth  V.  Railway  Co.,  645. 
Elmon  V.  Railway  Co.,  530. 
Elmore  v.  Sands,  037. 


XXXVl 


TAr.LE    OF    CASES. 


References  are  to  sections. 


Elmore  v.  Naugatuck  Ry.  Co.,  536. 

Emerson  v.  Peteler,  588. 

Emery  Sons  v.  Irwin  Nat.  Bank,  255. 

En  us  V.  Cole,  128. 

EpendorfF  v.  Street  Car  Co.,  655. 

Epps  V.  Hinds,  366. 

Erie  Co.  v.  Wilcox,  530. 

Erie  Dispatch  Co.  v.  Johnson,  561. 

Erie  &  Pac.  Dispatch  Co.  v.  Cecil, 
550. 

Estes  V.  Railway  Co.,  681. 

Estey  &  Green  v.  Graham,  287. 

Evans  v.  Atlanta,  etc.  Ry.  Co.,  536. 

Evans  v.  Chicago,  etc.  Ry.  Co.,  557, 
638. 

Evans  v.  Fitchburg,  etc.  Ry.  Co.,  487. 

Evansville,  etc.  Co.  v.  Keith,  432. 

Evansville  Ry.  Co.  v.  Irwin,  259. 

Evansville  Ry.  Co.  v.  Marsh,  556. 

Evansville  Ry.  Co.  v.  Young.  509. 

Everett  v.  Railway  Co.,  634. 

Everett  v.  Saltus,  696. 

Exchange  Bank  v.  Butner,  243. 

Exeter  Bank  v.  Gordon,  318. 

Express  Co.  v.  Black,  436. 

Express  Co.  v.  Caldwell,  517. 

Express  Co.  v.  Darnell,  570. 

Express  Co.  v.  Gordon,  318. 

Express  Co.  v.  Haynes,  515. 

Express  Co.  v.  Jackson,  469. 

Express  Co.  v.  Moon,  515. 

Express  Co.  v.  McVeigh,  691. 

Express  Co.  v.  Spellman,  515. 

Express  Co.  v.  Stettaners,  515. 

Fagan  v.  Thompson,  45,  291. 

Fairbanks,  etc.  Co.  v.  Railway  Co., 
519. 

Fairfax  v.  Railway  Co.,  206. 

Fairfield  v.  Holley,  231. 

Faison  v.  Railway  Co.,  536. 

Falls  V.  Railway  Co.,  629. 

Farish  &  Co.  v.  Reigle,  621,  721. 

Farkas  v.  Powell,  127. 

Farley  v.  Lavery,  410. 

Farmers"  &  Mechanics'  Bank  v. 
Champlain  Transp.  Co.,  482,  520, 
530. 

Farmers',  etc.  Nat.  Bank  v.  Hazel- 
tine,  259. 

Farmers'  Nat.  Bank  v.  Logan,  259. 


Farmers'  Loan  &  Trust  Co.  v.  Rail- 
waj^  Co.,  305. 

Farmington  Co.  v.  Railway  Co.,  536^ 

Faruham  v.  Railwaj'  Co.,  520. 

Farnsworth  v.  Packwood,  367. 

Farrell  v.  Richmond  Ry.  Co..  174,  588,. 
590,  591. 

Farwell  v.  National  Bank,  313,  317. 

Faulkner  v.  Brown,  58,  366. 

Faulkner  v.  Hill,  286. 

Faxen  v.  Mansfield,  147. 

Fay  v.  Pacific  Implement  Co.,  337. 

Fay  V.  Parker,  707. 

Fay  v.  Steamer  New  World,  405,  512., 

Feige  v.  Railway  Co..  184,  581. 

Feise  et  al.  v.  Wray,  588. 

Feital  v.  Railway  Co.,  721. 

Fenkhousen  v.  Fellows,  588. 

Fenner  v.  Railwaj'  Co.,  574. 

Fettyplace  v.  Dutch,  254,  277. 

Fidelity  Ins.  etc.  Co.  v.  Roanoke  Iron, 
Co.,  305. 

Fifield  V.  Insurance  Co.,  474. 

Fifth  Nat.  Bank  v.  Providence  Ware- 
house Co.,  178. 

Files  V.  Railway  Co.,  602,  655. 

Fillebrown  v.  Railway  Co.,  520. 

Findlay  v.  Hosmer.  312. 

Finn  v.  Railway  Co.,  366.  698. 

First  Nat.   Bank  v.   Broadway  Nat. 
Bank,  244. 

First  Nat.  Bank  v.  Dearborn,  253. 

First  Nat.  Bank  v.  Graham,  198. 

First  Nat.  Bank  v.  Nelson,  238. 

First  Nat.  Bank  v.  Ocean  Nat.  Bank^ 
198. 

First  Nat.  Bank  v.  Rex,  198. 

First  Nat.  Bank  v.  Rush,  305. 

First  Nat.  Bank  v.  Zent.  198. 

First  Nat.  Bank  of  Chicago  v.  Dean, 
179. 

First  Nat.  Bank  of  Omaha  v.  Good- 
man, 233. 

Fish  V.  Chapman,  410,  525. 

Fisher  v.  Essex  Bank,  251. 

Fisher  v.  Fisher,  244,  317. 

Fisher  v.  Geddes,  437. 

Fisher  v.  Kelsey.  337.  352,  367,  373. 

Fisk  V.  Newton.  574,  575. 

Fitch  V.  easier,  339. 


TABLE    OF    CASES. 


XXXVll 


References  are  to  sections. 


Fitch  &  Gilbert  v.  Newberry  &  Good- 
ell,  383,  555. 

Fitch  burg  Ry.  Co.  v.  Gage.  550. 

Fitchburg  Ry.  Co.  v.  Hauna,  182. 

Fitzgerald  v.  Railway  Co.,  549. 

Flaherty  v.  American  Exp.  Co.,  689. 

Fletcher  v.  American  Exp.  Co.,  562. 

Fletcher  v.  Dickinson,  313. 

Fliun  V.  Railway  Co.,  822. 

Flynn  v.  Railway  Co.,  536. 

Ford  V.  Cheever,  707. 

Foreman  v.  Beckwith,  242. 

Forester  v.  Railway  Co.,  536. 

Forsytlie  v.  Walker,  480. 

Fort  Worth,  etc.  Ry.  Co.  v.  Martin, 
432. 

Fort  Worth,  etc.  Ry.  Co.  v.  Riley,  430. 

Forward  v.  Pittard,  472. 

Foster  v.  Berg,  308. 

Foster  v.  Essex  Bank,  15. 

Foster  v.  Metts,  391. 

Foster  v.  Pettibone,  62,  140. 

Fowler  v.  Steamship  Co.,  508. 

Fox  V.  Harding,  714. 

France  v.  Clark,  314. 

Francis  v.  Shrader,  121. 

Frank  v.  Ingalls,  640. 

Frank  v.  Keith,  474. 

Frankfort  Bank  v.  Johnston,  208. 

Frazier  v.  Railway  Co..  430. 

Freedon  v.  Railway  Co.,  612. 

Freeman  v.  Perr}-,  242. 

Freiburg  v.  Dreyfus,  262. 

Fridley  v.  Bowen,  237. 

Friedlander  v.  Railroad  Co.,  439,  462. 

Frink  &  Co.  v.  Coe,  621. 

Frost  V.  Shaw.  227. 

Fuller  V.  Bradley,  558. 

Fuller  V.  Coats,  356,  358,  359,  362. 

Furman  v.  Railway  Co.,  562. 

Furness  v.  Union  Nat.  Bank,  45. 

Gage  V.  Riverside  Trust  Co.,  279. 

Gaines  v.  Union  Transp.  Co..  509, 515. 

Galena,  etc.  Co.  v.  Rae,  432,  454. 

Galena,  etc.  R.  Co.  v.  Fay,  657. 

Galigher  v.  Jones.  324. 

Gallin  v.  Railway  Co.,  661. 

Gait  V.  Archer,  559,  713. 

Galway  v.  Fullerton,  241. 

Gardner  v.  Iloeg.  226. 


Gardner  v.  People,  212. 
Gardner  v.  Railway  Co.,  655. 
Gargan  v.  West  End  Street  Car  Co., 

605. 
Garlick  v.  James,  304,  318. 
Garton  v.  Railway  Co.,  550. 
Garton  v.  Union  City  Bank,  231. 
Gashweiler  v.  Railway  Co.,  581. 
Gastenhofer  v.  Clair,  340. 
Gates  V.  Ryan,  545. 
Gee  V.  Railway  Co.,  714. 
Geilfus  V.  Corrigan,  176,  238. 
Geismer  v.  Railway  Co.,  496,  500. 
Genet  v.  Rowland,  325. 
George  v.  Matorn,  238. 
George  v.  Pierce,  238. 
Georgia,  etc.  Co.  v.  Asmore,  646. 
German  Union  Asso.  Bldg.  v.  Send 

meyer,  247. 
German  ia  Savings  Bank  v.  Peuser, 

497. 
Gibbons  v.  Paynton,  525. 
Gibbons  v.  Robinson,  462. 
Gibson  v.  Culver.  574. 
Gibson  v.  Warden.  312. 
Giflfen  v.  City,  724. 
Gilbert  v.  Aldrich,  349. 
Gilbert  v.  Dale,  536. 
Gilbert  v.  Hoffman,  344. 
Gilbert  v.  Manufacturing  Co.,  250. 
Gile  V.  Libbey,  349,  356. 
Giles  V.  Founteli'oy,  373. 
Gillett  V.  Whiting,  322. 
Gilson  V.  Madden,  545. 
Girard  v.  Fire  &  M.  Ins.  Co.,  316. 
Gisbourn  v.  Hurst,  406. 
Glass  v.  Goldsmith,  462. 
Gleason  v.  Railway  Co.,  598. 
Gleason  v.  Ti-ansportation  Co.,  688. 
Gliddenv.  Bank,  305. 
Glidden  v.  IMechanics'  Nat.  Bank,  826. 
Globe  Works  v.  Wright,  162. 
Golden  v.  Mechanics'  Nat.  Bank,  313. 
Goldstein  v.  Hort,  283. 
Good  bar  v.  Railway  Co.,  182. 
Goodman  v.  Conkling,  244. 
Goodrich  v.  Thompson,  163,  436,  505. 
Goodrich  v.  Willard,  163. 
Goodwin  v.  Massachusetts  Loan  & 

Trust  Co.,  244. 


XXXVIU 


TABLE    OF    CASES. 


References  are  to  sections. 


Goodwin  V.  Scanlon,  178. 

Gordon  v.  Buchanan.  410. 

Gordon  v.  Hutchinson,  406,  410. 

Gordon  v.  Manche.ster,  658. 

Gordon  v.  Railway  Co.,  596. 

Gordon  v.  Silver,  375. 

Goss  V.  Emerson,  848.  286. 

Gott  V.  Dinsmore,  515,  520. 

Gould  V.  Hill,  518. 

Gould  V.  Railway  Co.,  646. 

Grace  v.  Adams,  509,  516. 

Gracie  v.  Palmer,  553. 

Graffin  v.  Railway  Co.,  679. 

Graham  v.  McNeill,  631. 

Graham  v.  Railway  Co.,  655. 

Graman  v.  Smith,  322. 

Grand  Island  Sav.  &  Loan  Ass'n  v. 

Moore,  297. 
Grand  Rapids,  etc.  Ry.  Co.  v.  Hunt- 
ley. 468,  627. 
Grand  Trunk  Ry.  Co.  v.  Ives,  654. 
Grant  v.  Button,  147. 
Grant  v.  Norway,  439,  462. 
Grant  v.  Wood.  545. 
Graven  v.  MacLeod,  605,  744. 
Gray  v.  Jackson,  528,  530. 
Gray  v.  Merriam.  94. 
Great  Western  Ry.  Co.  v.  Hawkins, 

488,  489. 
Great  Western  Ry.  Co.  v.  Miller,  652. 
Great  Western  Ry.  Co.  v.  Sutton,  550. 
Great  Western  Transp.  Co.  v.  Bagge, 

545. 
Green  v.  Clark.  697. 
Green  v.  Railway  Co.,  439,  450,  712. 
Greenfield  Scliool  District  v.   First 

Nat.  Bank,  244. 
Greenwall  v.  Hayden,  317. 
Gregg  V.  Railway  Co..  183.  581. 
Gregory  v.  Stryker,  140,  160. 
Gregory  v.  Railway  Co..  182. 
Griffith  V.  Railway  Co.,  632. 
Grindley  v.  Express  Co.,  494. 
Grinnell  v.  Cook,  163,  165,  349,  366, 

379. 
Griswold  v.  Railway  Co.,  661,  664. 
Grosvenor  v.  Railway  Co.,  431,  433, 

436. 
Grover  &  Baker  Co.  v.  Railway  Co., 

530. 


Gruman  v.  Smith,  322. 

Grund  v.  Pendergast,  709. 

Grymes  v.  Hone,  249. 

Gulf,  etc.  Ry.  Co.  v.  Campbell,  640. 

Gulf.  etc.  Ry.  Co.  v.  Looney.  639. 

Gulf,  etc.  Ry.  Co.  v.  McGown,  660. 

Gulf,  etc.  Ry.  Co.  v.  Trawick,  182, 

489. 
Gulf,  etc.  Ry.  Co.  v.  Wilson,  598. 
Gulf,  etc.  Ry.  Co.  v.  Wright.  513. 
Gulf.  etc.  Ry.  Co.  v.  York,  489. 
Gunderman  v.  Railway  Co.,  629. 
Haas  V.  Railway  Co.,  259. 
Hadley  v.  Baxendale,  494,  713. 
Had  ley  v.  Cross,  625. 
Hager  v.  Union  Nat.  Bank,  291. 
Hagerstown   Bank    v.   Express  Co., 

540. 
Haines  v.  Railway  Co.,  674. 
Hale  V.  Milwaukee  Dock  Co.,  178, 179. 
Hale  V.  New  Jersey  Nav.  Co.,  473. 
Hales  V.  Railway  Co.,  493. 
Hall  T.  Cheney,  509. 
Hall  V.  De  Cuir,  612,  613. 
Hall  V.  Diamond.  553,  590. 
Hall  V.  Ocean  Ins.  Co.,  543. 
Hall  V.  Pike,  337. 
Hall  V.  Railway  Co.,  661. 
Hall  V.  Warner,  132. 
Halstead  v.  State,  212. 
Hamilton  v.  Lubukee,  371. 
Hamilton  v.  McLanghlin,  78. 
Hamilton  v.  McNulty,  385. 
Hamilton  v.  State  Bank,  324. 
Hammond  v.  Danielson,  162. 
Hampton  v.  Pullman  Car  Co.,  641. 
Hance  v.  Railway  Co.,  515. 
Hancock  v.   Franklin  Ins.  Co.,  280, 

303. 
Hancock  v.  Rand,  337. 
Hand  v.  Baj^nes,  574. 
Hanes  v.  Railway  Co.,  674* 
Hanks  v.  Drake,  322. 
Hanmer  v.  Holton,  313. 
Hanna  v.  Holton,  307,  313. 
Hannibal,  etc.  Ry.  Co.  v.  Swift,  457. 
Hardenberg  v.  Railway  Co.,  681. 
Harris  v.  Bradley,  176. 
Harris  v.  Packard,  543. 
Harris  v.  Railway  Co.,  530. 


TABLE    OF    CASES. 


XXXIX 


References  are  to  sections. 


Harris  v.  Rand,  469,  538. 

Harris  et  al.  v.  Pratt,  590. 

Harrington  v.  Stratton,  800. 

Hart  V.  Railway  Co.,  510,  711. 

Hartley  v.  Tapley,  226. 

Hart  well  v.  Northern  Pac.  Exp.  Co., 

471. 
Harvey  v.  Railway  Co.,  494,  709. 
Hasbrouck  v.  Vandervoort,  326. 
Haskins  v.  Pattison,  273. 
Hasse  v.  Express  Co.,  567.  570. 
Hathaway  v.  Haynes,  240,  256. 
Hatten  v.  Railway  Co.,  637. 
Hauselt  v.  Harrison,  273. 
Hawkins  v.  Great   Western  Ry.  Co., 

457,  519,  671. 
Hawkins  v,  Hoffman,  681. 
Hawley  v.  Cramer,  305. 
Hawthorne  v.  Hammond.  343. 
Hay  V.  Pacific  Implement  Co.,  352. 
Hayes  v.  Campbell,  435. 
Haynie  v.  Baylor,  410. 
Hays  V.  Pennsylvania  Co.,  550. 
Hays  V.  Wells,  Fargo  &  Co.,  482. 
Hayward  v.  Middleton,  545. 
Hazard  v.  Wells,  316. 
Head  v.  Goodwin,  226. 
Heath  v.  Glens  Falls  Street-Car  Co., 

657. 
Heath  v.  Silverthorn  Co.,  290. 
Hedges  et  al.  v.  Railway  Co.,  579. 
Hegeman  v.  Western  R.  Corp.,  627. 
Heil  V.  Railway  Co.,  710. 
Heiskill  v.  Bank,  253,  562. 
Heller  v.  Railway  Co.,  488,  489. 
Helliwell  v.  Railway  Co.,  457. 
Hemmelmann  v.  Fitzpatrick,  298. 
Hempner  v.  Comer,  243. 
Henderson  v.  Mayor  of  New  York, 

013. 
Henderson  v,  Stephenson,  515. 
Hendricks  v.  Railway  Co..  596. 
Hendricks  v.  Robinson.  291. 
Hensel  v.  Noble,  G8,  163. 
Herbert  v.  Markwell,  358. 
Hern  v.  Nichols,  558. 
Herrick  v.  Gallagher,  572. 
Hersh  v.  Railway  Co.,  550. 
Hewitt  v.  Railway  Co.,  457. 


Hexamer  v.  Webb,  208. 

Hey  ward  v.  Railway  Co.,  665. 

Hiatt  V.  Railway  Co.,  629. 

Hibbard  v.  Railway  Co.,  613,  636. 

Hickey  v.  Morrell,  204. 

Hickox  V.  Buckingham,  462,  540. 

Hickman  v.  Thomas,  386. 

Hill  v.  Denver,  557. 

Hill  v.  Owen,  357. 

Hill  V.  Railway  Co.,  523  637. 

Hills  V.  Smith,  291. 

Hilton  V.  Adams,  360. 

Hilton  V.  Sims,  234. 

Hinsdell  v.  Weed,  537. 

Hoadley  v.  Northern  Transp.  Co.,  509. 

Hobbs  V.  Railway  Co.,  722. 

Hodgen  v.  Railway  Co.,  504. 

Hodges  v.  Tennessee  Ins.  Co.,  252. 

Hoeger  v.  Railway  Co.,  674. 

Hofer  v.  Hodge,  132. 

Hoffbauer  v.  Railway  Co.,  646. 

Hoffman  v.  Railway  Co.,  648. 

Holbrook  v.  N.  J.  Zinc  Co.,  249. 

Holbrook  v.  Wight,  61. 

Holden  v.  Soulby,  364. 

Holeman  v.  Hobson.  317. 

Holmes  v.  Bailey,  255. 

Holmes  v.  German  Security  Bank, 
255. 

Holt  V.  Wescott,  545. 

HoUingsworth  v.  Dow,  162. 

Hollister  v.  Nowlen,  474,  482,  509,  520. 

Home  Ins.   Co.   v.  Baltimore  Ware- 
house Co.,  177. 

Homer  v.  Savings  Bank,  287. 

Hood  V.  New  York,  etc.  Ry.  Co.,  530. 

Hook  V.  Ayers,  238. 

Hoover  et  al.  v.  Railwa}'  Co.,  550. 

Hopkins  v.  Wescott,  671. 

Hoppin  V.  Buffum,  250. 

Horner  v.  Savings  Bank,  310. 
Hosmer  v.  Railway  Co.,  661. 
Hough  v.  People's  Ins.  Co.,  177. 
Houghton  V.  Houghton,  300. 
House  V.  Alexander,  558. 
Houser  v.  TuUa,  356,  360,  363. 
Houston,   etc.  Ry.  Co.  v.  Hampton, 

598. 
Houston,  etc.  Ry.  Co.  v.  Hodde,  431. 


xl 


TABLE    OF    CASES. 


References  are  to  sections. 


Houston,  etc.  Ry.  Co.  v.  Ney,  712. 

Houston,  etc.  Ry.  Co.  v.  Nor r is,  657. 

Houston,  etc.  Ry.  Co.  v.  Smith,  709. 

Howard  v.  Farr,  138. 

Howard  v.  Harris,  253. 

Howard  v.  Manufacturing  Co.,  494 

Howard  v.  Old  Dominion  Co.,  561. 

Howe  T.  Russell,  252. 

Howe  V.  Stewart,  589. 

Howe  Machine  Co.  v.  Pease,  352,  356, 

357. 
Howland  v.  Railway  Co.,  600. 
Howth  V.  Franklin,  330. 
Hozier  v.  Railway  Co.,  550. 
Hubbersty  v.  Ward.  439. 
Hufford  V.  Railway  Co.,  645. 
Hughs  V.  Edwards,  252. 
Huiton  V.  Dibbonds,  42. 
Hulbert  v.  Hartman,  352,  355. 
Huldeman  v.  German  Security  Bank, 

232. 
Hulett  V.  Swift,  349,  352,  360. 
Hull  V.  Railway  Co.,  471. 
Humphreys  v.  Perry,  673. 
Hunsaker  v.  Sturgi.s,  291. 
Hunt  V.  Wyman,  59. 
Hunter  v.  Railway  Co.,  530. 
Hunterdon  Co.  v.  Nassau  Bank,  249. 
Hurd  V.  Railway  Co.,  612. 
Hursh  V.  Byers,  387. 
Hurwitz   V.    Hamburg,   etc.   Packet 

Co.,  668,  671. 
Hutchinson  v.  Commonwealth.  211. 
Hutchinson  v.   Chicago,  St.  P.  etc. 

Co.,  483. 
Hutchinson  v.  Railway  Co.,  600. 
Huyler  v.  Dahoney,  313. 
Hyde  v.  Cook  son,  140. 
Illinois  Cent.  Ry.  Co.  v.  Adams,  489. 
Illinois  Cent.    Ry.  Co.  v.   Ashmead, 

182. 
Illinois  Cent.  Ry.  Co.  v.  Bauer.  644 
Illinois   Cent.  Ry.  Co.  v.  Beebe,  599, 

682. 
Illinois  Cent.  Ry.  Co.  v.  Carter,  528. 
Illinois   Cent.  Ry.  Ca  v.  Cobb,  444. 

445,  494 
Illinois  Cent.   Ry.   Co.   v.   Copeland, 

530. 
Illinois  Cent.  Ry.  Co.  v.  Crudup.  660. 


Illinois  Cent.  Ry.  Co.  v,  Frankenberg, 

520.  530. 
Illinois  Cent.  Ry.  Co.  v.  Handy,  641, 

684 
Illinois  Cent.  Ry.  Co.  v.  Harri.s,  489. 
Illinois  Cent.  Ry.  Co.  v.  Hobbs,  629. 
Illinois  Cent.  Ry.  Co.  v.  Hornberger, 

182. 
Illinois  Cent.  Ry.  Co.  v.  Minor,  6.32, 
Illinois  Cent.  Ry.  Co.  v.  Morrison,  509. 

510,  518. 
Illinois  Cent.  Ry.  Co.  v.  McClellan, 

182. 
Illinois  Cent.  Ry.  Co.  v.  O'Keefe,  601. 
Illinois  Cent.  Ry.  Co.  v.  Read,  662. 
Illinois  Cent.   Ry.   Co.  v.   Schwartz, 

444. 
Illinois  Cent.  Ry.  Co.  v.  Smyser,  433, 

452. 
Illinois  Cent.   Ry.    Co.   v.   Southern 

Bank,  256. 
Illinois  Cent.  Ry,  Co.  v.  Treat,  596. 
Illinois  Cent.  Ry.  Co.  v.  Whittemore, 

613. 
Indiana,  etc.  Ry.  Co.  v.  McKennan, 

304 
Indiana,  etc.  Ry.  Co.  v.  Mundy,  660, 

664 
Indianapolis,  etc.  Ry.  Co.  v.  Cox,  522. 
Indianapolis,  etc.  Ry.  Co.  v.  Herndon, 

561. 
Indianapolis,  etc.  Ry.  Co.  v.  Rinard, 

609. 
Ingalls  V.  Bills,  625,  637. 
Ingeltby  v.  Wood,  349. 
Ingersoll  v.  Van  Bokkelin,  540. 
Inglebright  v.  Hammond,  63. 
In  man  v.  Railway  Co.,  446.  660. 
Inman  v.  South  Carolina,  etc.  Ry.  Co., 

541. 
In  re  Mosser's  Estate,  234 
In  re  Oakley  et  al..  279. 
In  re  Peterson  v.  Case,  714 
In  re  Riley.  312. 
Insurance  Co.  v.  Chase.  177. 
Insui-ance  Co.  v.  Easton,  471. 
Insurance   Co.  v.  Railway  Qo.,  528, 

541. 
International,  etc.  Co.  v.  Nicholson, 

714 


TABLE    OF    OASES. 


xli 


References  are  to  sections. 


International,  etc.  Co.  v.  Tisdale,  531. 
•Interstate  Com.  v.  Railroad  Co.,  550. 
Iron  Mountain  Ry.  Co.  v.  Knight,  439. 
Irons  V.  Kentner,  24. 
Isbell  V.  Railway  Co.,  653. 
Tseman  v.  South  Carolina,  etc.  Co., 

597. 
J.  P.  Donaldson,  The,  414. 
Jackson  v.  Adams,  153. 
Jackson  v.  Bank,  317. 
Jackson  v.  Blodgett,  271. 
Jackson  v.  Bronson,  271. 
Jackson  v.  Cummins,  163. 
Jackson  Agr.  Iron  Works  v.  Hurlburt, 

419. 
Jacobi  V.  Haynes,  356. 
Jacobs  V.  Latour,  183. 
Jacobus  V.  Railway  Co.,  509,  660,  664, 
Jagger  v.  Railway  Co..  655. 
Jalie  V.  Cardinal  et  al..  356,  362. 
James  v.  Emmett  Co.,  716. 
James  v.  Plank,  24 
Jamison  v.  Gray,  456. 
Jaques  v.  Marquand,  244. 
Jarvis  v.  Rogers,  234,  286,  289. 
Jasper  Trust  Co.  v.  Railway  Co.,  259. 
Jeffersonviile  Ry.  Co.  v.  Irwin,  255. 
Jeffris  V.  Railway  Co.,  558. 
Jellett  V.  Railway  Co..  366. 
Jencks  v.  Coleman,  610.  613. 
Jenkins  v.  Eldridge,  252. 
Jenkins  v.  National  Bank,  293. 
Jenneson  v.  Railway  Co.,  530. 
Jenness  v.  Bean,  243.  313. 
Jennison  v.  Parker,  302. 
Jerome  v.  McCarter,  302,  303,  312. 
Jewel  V.  Railway  Co.,  656. 
Jewett  V.  Warren,  230. 
Johnson  v.  Davis,  557. 
Johnson  v.  Eveletli,  590. 
Johnson  v.  Hill,  16.5. 
Johnson  v.  Laflin.  249. 
Johnson  v.  Miller,  64,  127. 
Johnston  v.  Friar.  410. 
Johnston  v.  Pensacola   Ry.  Co.,  543, 

550. 
Johnston  v.  Railway  Co.,  499,  534. 
Johnston  v.  Richardson,  352,  359. 
John.ston  v.  Smith,  286. 
Johnston  v.  Underhill,  249. 


Joliet  Iron  Co.  v.  Railway  Co.,  313, 
315. 

Jones  V.  Earle,  589. 

Jones  V.  Hicks,  316. 

Jones  V.  Morgan,  190. 

Jones  V.  Richardson,  226. 

Jones  V.  Railway  Co.,  602,  660,  724 

Jones  V.  Scott,  299. 

Jones  V.  Vorhees,  520. 

Jordan  v.  Railway  Co.,  671. 

Joslin  V.  Railway  Co.,  98.  708. 

Joslyn  V.  King,  98. 

Judson  V.  Railway  Co.,  512,  520. 

Kaiser  v.  Latimer,  202. 

Kaiser  v.  Topping.  238. 

Kalen  v.  Railway  Co.,  724. 

Kamena  v.  Huelbig,  241. 

Kansas,  etc.  R}-.  Co.  v.  Simpson,  510, 
515. 

Keater  v.  Scranton  Traction  Co.,  608. 

Keenan  v.  Southworth,  389. 

Keith  V.  Bliss,  153. 

Kellerman  v.  Railway  Co.,  513. 

Kellow  V.  Railway  Co.,  622. 

Kelly  V,  Kahn,  94 

Kelly  V.  Manhattan,  etc.  Co.,  629. 

Kelly  V.  Patchell,  63. 

Kelly  V.  Railway  Co..  623. 

Kemp  V.  Coughtry,  411. 

Kemp  V.  Westbrook,  326. 

Kendall  v.  Boston,  721. 

Kendall  &  Co.  v.  Mason,  312. 

Kennedy  v.  New  York  Cent.  Ry.  Co., 
519. 

Kenny  v.  Railway  Co.,  519. 

Kent  V.  Shackford,  348. 

Kentucky  Bank  v.  Adams  Exp.  Co., 
421. 

Kentucky  Wagon  Mfg.  Co.  v.  Rail- 
way Co.,  561. 

Kimball  v.  Cushman,  208. 

Kimball  v.  Rutland,  509,  520. 

King  V.  Bates,  80. 

King  V.  Railway  Co.,  208. 

King  V.  Shepherd,  462,  471. 

King  V.  Texas,  etc.  Ins.  Co.,  806. 

Kingman  v.  Dennison,  590. 

Kinney  v.  Kempton,  293. 

Kinney  v.  Kruse,  243. 

Kinny  v.  Railway  Co.,  664 


xlii 


TABLE    OF    CASES. 


References  are  to  sections. 


Kirby  v.  Delaware,  etc.  Co..  629. 
Kirk  V.  Chicago,  etc.  Co.,  581. 
Kirk  V.  Railway  Co.,  184. 
Kirkman  v.  Bowman,  462. 
Kirkham  v.  Sbawcross,  163.      • 
Kirney  v.  Railway  Co.,  661. 
Kissman  v.  Jones,  125. 
Kiston  V.  Hildebrand,  349,  359. 
Kleiber  v.  Railway  Co.,  657. 
Knapp  V.  Curtis,  204. 
Knight  V.  Bell,  80. 
Knight  V.  Davis  Car  Co.,  58. 
Knight  V.  Piella,  206. 
Knott  V.  Railway  Co.,  530. 
Knowles  v.  Railway  Co..  208. 
Knowlton  v.  Railway  Co.,  597. 
Knowlton  v.  Western  R.  Corp.,  597. 
Kopper  V.  Willis,  335. 
Kortright  v.  Commercial  Bank,  247, 

248. 
Kortwright  v.  Cady.  559. 
Krulder  v.  Ellison,  696. 
Kuehn  v.  Wilson,  153. 
Kumler  v.  Railway  Co.,  600. 
Kunkle  v.  Wolfersberger,  252. 
Lacey  v.  Thompson,  329. 
Ladd  V.  Railway  Co.,  600. 
Lafaye  v.  Harris,  455. 
Lafitte  V.  Railway  Co.,  647. 
Laing  v.  Burley,  250. 
Laing  v.  Colder,  520. 
Laird  v.  Eignold,  352. 
Lakeman  v.  Grinnell,  452. 
Lake  Erie,  etc.  Co.  v.  Hatch,  581. 
Lake  Erie,  etc.  Ry.  Co.  v.  Fix,  634. 
Lake  Shore,  etc.  Co.  v.  Banks,  656. 
Lake  Shore,  etc.  Co.  v.  Brown,  599. 
Lake  Shore,  etc.  Co.  v.  Perkins,  488. 
Lake  Shore,  etc.  Ry.  Co.  v.  Mortal, 

633. 
Lake  Shore,  etc.  Ry.  Co.  v.  Orndortf, 

644. 
Lamb  v.  Parkman,  399. 
Lamb  v.  Railway  Co.,  206. 
Lancaster    Company  Nat.    Bank  v. 

Smith,  198. 
Lancaster  Mills  v.  Merchants'  Cotton 

Press  Co.,  177,  204. 
Lancaster  Mills  v.  Railway  Co.,  157. 
Lane  v.  Cameron,  47. 


Lane  v.  Cotton,  389. 

Lane  et  al.  v.  Old  Colony,  etc.  Ry.  Co., 

183,  558. 
Lansing  v.  Railwa}^  Co.,  434. 
Lassen  v.  Clark,  360. 
Laughlin  et  al.  v.  Railway  Co.,  536. 
Laurent  v.  Vaughan,  456. 
Lawrence  v.  Aberdein,  487. 
Lawrence  v.  Clark,  244. 
Lawrence  v.  Green,  721. 
Lawrence  v.  Maxwell,  290. 
Lawrence  v.  Railway  Co.,  512. 
Lawson  v.  Gennesee  Farmer  &  Co., 

180. 
Lawson  v.  Railway  Co.,  599. 
Lay  V.  Lawson,  80. 
League  v.  Rogan,  353. 
Leahy  v.  Lobdell,  Farrell  &  Co.,  305. 
Ledyard  v.  Hibbard,  24,  211. 
Lee  V.  Baldwin,  316. 
Legg  V.  Willard,  299. 
Lehr  v.  Railway  Co.,  631. 
Leidy  v.  Quaker  City  Cold  Storage 

&  Warehouse  Co.,  204. 
Leigh  V.  Smith,  430,  431,  432,  439. 
Leitch  V.  Wells,  249. 
Lemon  v.  Chanslor,  418. 
Lempier  v.  Pasley.  555. 
Leo  V.  Railway  Co.,  536. 
Le  Barron  v.  Ferry  Co.,  665. 
Le  Peintur  v.  Railway  Co.,  714 
Lesassier  v.  S.  W.  Co.,  590. 
Lesinski  v.  G.  W.  D.  Co.,  534,  724. 
Levering  v.  Transp.  Co.,  515. 
Levi  V.  Corey,  347. 
Levi  V.  Lynn,  etc.  Ry.  Co.,  420. 
Levien  v.  Webb,  641. 
Levinski  v.  Banking  Co.,  724. 
Lewis  V.  Great  Western  Ry.  Co.,  516. 
Lewis  V.  Hitchcock,  332. 
Lewis  V.  Mott.  286. 
Lewis  V.  New  York  Sleeping  Car  Co., 

338,  641,  685. 
Lewis  V.  Tyler,  163. 
Lewis  V.  Van  Horn,  436. 
Lexington  Ry.  Co.  v.  Kidd.  57. 
Libby  v.  Railway  Co.,  598.      , 
Lichtenheim  v.  Railway  Co.,  205,  210. 
Lickbarrow  v.  Mason.  255.  264,  590. 
Lidderdale  v.  Montrose,  228. 


TABLE    OF    CASES. 


xliii 


References  are  to  sections. 


Lillibridge  v.  McCann,  655. 

Lime  Rock  Bank  v.   Plumpton,  244. 

Lincoln  v.  Gay,  153. 

Little  V.  Fosset,  58,  540. 

Little  V.  Railway  Co.,  520.     . 

Littlefield  v.  Biddeford,  58. 

Little  Rock  v.  Atkins,  655. 

Little  Rock,  etc.  Co.  v.  Cravens,  513, 

514. 
Little  Rock,  etc.    Ry.  Co.  v.  Opper- 

heimer,  etc.  Co.,  550. 
Little  Lock,  etc.  Ry.  Co.  v.  Talbot, 

519. 
Liverpool,  etc.  Ins.  Co.  v.  McNeill, 

510. 
Liverpool  Steamboat  Co.  v.  Phoenix 

Co.,  412,414,510,660. 
Lock  Co.  v.  Railway  Co.,  536. 
Lock  wood  v.  Ball,  126. 
Loeb  V.  Peters,  587,  588,  590. 
London  &  L.  Ins.  Co.  v.  Railway  Co., 

430. 
Long  V.  Printing  Co.,  706. 
Long  V.  Railway  Co.,  469. 
Lomis  V.  Jewett,  297. 
Loomis  V.  Stave,  308. 
Lord  V.  Hartford,  305. 
Loud  V.  Burke.  304. 
Louisville,  etc.  Co.  v.  Keifer,  660. 
Louisville,  etc.  Co.  v.  Logan,  648. 
Louisville,  etc.  Ry.  Co.  v.  Echols,  430. 
Louisville,  etc.  Ry.  Co.  v.  Faylor,  660. 
Louisville,  etc.  Ry.  Co.  v.  Flanagan, 

431.445.  456, 
Louisville,  etc.   Ry.  Co.  v.  Garrett, 

646. 
Louisville,  etc.  R}\  Co.  v.  Gerson,  411. 
Louisville,  etc.  Ry.  Co.  v.  Gilbert,  514, 

519. 
Louisville,  etc.  Ry.  Co.  v.  Hailey,  602. 
Louisville,  etc.  Ry.  Co.  v.  Johnston, 

()53. 
Louisville,  etc.  Ry.  Co.  v.  Jones,  721. 
Louisville,  etc.  Ry.  Co.  v.  Mississippi, 

etc.  Co.,  613. 
Louisville,  etc.  Ry.  Co.  v.  Moss,  602. 
Louisville,  etc.  Ry.  Co.  v.  Patterson, 

631. 
Louisville,   etc.    Ry.    Co.  v.  Wilson, 

543,  550. 


Louisville,  etc.  Ry.   Co.  v.   Wright, 

633. 
Lovejoy  v.  Jones,  64,  127. 
Loveland  v.  Burke,  481. 
Low  V.  Pew,  226. 
Lowrie  v.  Executrix,  176. 
Loyd  V.  Lynchburg  Nat.  Bank,  231. 
Lucas  v.  Railway  Co.,  629. 
Lucas  V.    Milwaukee,   etc.    Ry.  Co., 

602. 
Lucketts  V.  Townsend,  281. 
Lucy  V.  Railway  Co.,  632. 
Luhrs   V.  Brooklyn  Heights  R.  Co., 

632. 
Luke  V.  Wheat  Mining  Co.,  654. 
Lundy  v.  Railway  Co.,  638. 
Lusby  V.  Railway  Co.,  665. 
Lusk  V.  Belote.  337. 
Lycett  V.  Railway  Co.,  641. 
Lynar  v.  Mossope,  339. 
Lynch  v.  Kluber,  205. 
Lynch  v.  Railway  Co.,  648. 
Lyon  V.  Lenon  et  al.,  175,  211. 
Lyon  v.  Woodward,  716. 
Lyons,  etc.  Co.  v.  Hill  &  Co.,  571. 
Mack  V.  Snell,  23,  140,  144. 
Macklin  v.  Eraser,  172. 
Macrow  v.  Railway  Co.,  669. 
Maghee  v.  Camden,  405,  524. 
Maghee  v.  Railway  Co.,  499. 
Magnin  v.  Dinsmore,  482. 
Mahony  v.  Caperton,  234,  317. 
Mahony  v.  Hale,  239. 
Mairs  v.  Taylor,  283. 
Mai  lory  v.  Willis.  140. 
Mange  v.  Heringhi,  309. 
Mansen  v.  Jacobs,  532. 
Mann  v.  Logging  Co.,  427. 
Mann  v.  White  River,  etc.  Co.,  426. 
Mann  Boudoir  Co.  v.  Dupre,  642. 
Manning  v.  HoUenbeck,  375,  379,  381, 

386. 
Manning  v.  Wells,  352,  364. 
Mansur-Tebbetts   Implement  Co.   v. 

Carey  et  al.,  276. 
Manufacturers'  &  Traders'  Bank  v. 

Hazard,  463. 
Manufacturing  Co.  v.  Falvey,  317. 
Manufacturing  Co.  v.  Miller,  337. 
Manufacturing  Co.  v.  Pinch,  494 


xliv 


TABLE    OF   CASES. 


References  are  to  sections. 


Maples  V.  Railway  Co.,  636. 
Marine  Bank  v.  Wright,  356. 
Markham  v.  Brown,  343, 348, 368,  610. 
Marriam  v.  Railwaj'  Co.,  439. 
Marsh  v.  Railway  Co.,  714. 
Marshall  v.  Express  Co..  567,  570. 
Martin  v.  McReynolds,  271. 
Maslin  v.  Railway  Co.,  513,  599. 
Mason  v.  Thompson,  338,  348,  349,  353, 

362,  866. 
Mason  v.  Waite,  344. 
Masterson  v.  Street  Car  Co.,  655. 
Mateer  v.  Brown,  352. 
Mathias  v.  Sellers.  163. 
Mauran  v.  Insurance  Co..  474 
Maxwell  V.  Eason,  132. 
Mayer  v.  Heidelbach,  244. 
McAllister  v.  Simon.  207. 
McArthur  v.  Howett,  290. 
MoCafferty  v.  Brady,  210. 
McCalla  v.  Clark,  282,  294. 
McCarthy  v.  Gould,  228. 
McCaw  V.  Kimbrel,  132. 
McCawley  v.  Railway  Co.,  661. 
McClure  v.  Railway  Co.,  637. 
McClure  v.  Roman,  235. 
McConnihe  v.  Railway  Co.,  143. 
McConnell  v.  Hughes,  175. 
McConnell  v.  Railway  Co.,  530. 
McCoy  V.  Hock,  163. 
McCoy  V.  Keokuk  Ry.  Co.,  487,  509. 
McCurty  v.  Railway  Co.,  581. 
McCutcheon  v.  People,  212. 
McDaniel  v.  Railway  Co..  600. 
McDaniels  v.  Flour  Mfg.  Co.,  290. 
McDaniels  v.  Robinson.  338,  352,  358. 
McDonald  v.  Railway  Co..  581,  635. 
McDowell  V.  Chicago  Steel  Works  et 

al.,  303,  304. 
McDowell  V.  Railway  Co.,  184. 
McDuffie  V.  Railway  Co.,  549,  550. 
McEntee  v.  New  Jersey  S.  S.  Co.,  561. 
McFall  V.  Buckeye,  238. 
McGee  v.  Pacific  Implement  Co.,  337. 
McGhee  v.  Edwards.  163. 
McGill  V.  Rowand.  668. 
McGoffin  V.  Railway  Co..  598. 
McGraw  v.  Railway  Co.,  471,  495,  496. 
McGrew  v.  Thayer,  24. 
McHenry  v.  Railway  Co.,  353.  469. 


McHugh  V.  Schlosser.  345,  347,  368. 
Mclver  v.  Railway  Co.,  647. 
McKay  v.  Railway  Co.,  637. 
McKee  v.  Heckslier,  538. 
McKee  v.  Owen,  333.  610,  686. 
McKinney  v.  Neil,  621. 
McLean  v.  Burbank,  721. 
McManus  v.  Lancashire  Ry.  Co.,  488. 
McMaster  v.  Herrick,  73,  385. 
McMillan  v.  Railway  Co.,  184, 509, 520, 

522,  530,  581,  584. 
McNamara  v.  Railway  Co.,  602. 
McNeil  V.  Tenth  Nat.  Bank,  249. 
McNulty  V.  Railway  Co.,  600. 
McQuilten  v.  Railway  Co.,  654,  655. 
McTyre  v.  Steel,  462. 
McVeety  v.  Railway  Co.,  602,  640. 
Mead  v.  Bunn,  221. 
Mechanics'  Bldg.  &  Loan  Ass'n  v. 

Conover,  278. 
Mechanics'  Bank  v.  Farmers'  Bank, 

366. 
Medbury  v.  Railway  Co.,  713. 
Medlin  v.  Wilkinson.  64. 
Megee  v.  Beirne,  163. 
Meier  v.  Railway  Co.,  624,  721. 
Meigs  V.  Hayden,  697. 
Melzer  v.  Peninsular,  654. 
Memphis  Bethel  v.  Bank,  243. 
Merchants'  Bank  v.  U.  R  R.  T.  Co., 

355. 
Merchants'  Ins.  Co.  v.  Abbott.  244. 
Merchants'  Dispatch  Transp.  Co.  v. 

Block,  421. 
Merchants"  Dispatch  Transp.  Co.  v. 

Corn  forth,  457. 
Merchants'   Dispatch   Co.   v.  Furth- 

mann,  622. 
Merchants'  Nat.  Bank  v.  Guilmartin, 

198. 
Merchants'  Nat.  Bank  v.   Haverhill 

Iron  Works,  244. 
Merchants'  Nat.  Bank  v.   Hall,  231. 

233.  235. 
Merchants'  Nat.  Bank  v.  State  Nat. 

Bank,  208.  286. 
Merchants'  Nat.  Bank  v.  Tkompson. 

303,  319. 
Merriam  v.  Railway  Co.,  450. 
Merrick  v.  Brainard,  540. 


JLE    OF    CASES. 


xlv 


References  are  to  sections. 


Merrick  v.  Webster,  507. 

Merrifield  v.  Baker.  291. 

Merrill  v.  American  Exp.  Co.,  516. 

Merrill  v.  Claghorne,  849,  852,  353. 

Merrill  v.  Grinnell,  671,  681. 

Merritt  v.  Bart  hoi  ick,  271. 

Merritt  v.  Earle,  471. 

Merritt  v.  Old  Colony,  etc.   Ry.  Co., 

174,  193,  201. 
Mershon  v.  Hobensack,  406,  410. 
Messenger  v.  Railway  Co.,  424,  549, 

609. 
Metcalf  V.  Hess,  357,  360. 
Metz  V.  Railway  Co..  668. 
Metzger  v.  Schnabel,  337. 
Meyer  v.  Peck,  462.  464. 
Meyer  v.  Railway  Co.,  182,  633. 
Michigan  Cent.  Ry.  Co.  v.  Burrows, 

447.  501. 
Michigan  Cent.  Ry.  Co.  v.  Coleman, 

629.  655. 
Michigan  Cent.  Ry.  Co.  v.  Curtis,  471. 
Michigan  Cent.  Ry.  Co.  v.  Hale,  488, 

513,  520. 
Michigan   Cent.  Ry.  Co.   v.  Philips, 

255,  257. 
Michigan  Southern  Rj'.  Co.  v.  Caster, 

456. 
Michigan   Southern   Ry.  Co.   v.  Mc- 

Donough,  488. 
Midgeley  v.  Slocumb,  312. 
Midland  Ry.  Co.  v.  Bromley,  536. 
Miles  V.  Reinger,  242. 
Miles  V.  Walther,  308. 
Miller  v.  Gettysburg  Bank,  316. 
Miller  v.  Marston,  163. 
Miller  v.  Railway  Co.,  463. 
Millikin  v.  Jones,  163. 
Milliner  v.  Florence.  375. 
Milloy  V.  Railway  Co.,  182. 
Mills  V.  Shirley,  387. 
Milwaukee,  etc.  Ry.  Co.  v.  Arms,  198, 

706. 
Milwaukee  Malt  Extract  Co.  v.  Rail- 
way Co.,  444. 
Mims  V.  Mitchell,  132. 
Minet  v.  Forester,  84. 
Minor  v.  Railway  Co.,  545. 
Mirandona  v.  Burg,  724. 
Missouri,  etc.  Ry.  Co.  v.  Carter,  516. 


Missouri  Pac.  etc.  Co.  v.  Fagin,  489. 
Missouri  Pac.  etc.  Ry.  Co.  v.  McFad- 

den,  439. 
Missouri  Pac.  Ry.  Co.  v.  Evans,  648. 
Missouri  Pac.  Ry.  Co.  v.  Hall,  494. 
Missouri  Pac.  Ry.  Co.  v.  Heidenhei- 

mer,  561. 
Missouri  Pac.  Ry.  Co.  v.   Ivey,    597, 

680. 
Missouri  Pac.  Ry.  Co.  v.  Wortham, 

629. 
Mitchell  V.  Green,  252. 
Mitchell  V.  Hotchkiss,  716. 
Mitchell  V.  Railway  Co.,  721. 
Mitchell  V.  Roberts,  398,  301. 
Moflfatt  V.  Van  Dorn,  229. 
Mohr  V.  Railway  Co.,  581. 
Monongahela  Ins.  Co.  v.  Chester,  353. 
Montgoinery.  etc.  Ry.  Co.  v.  Kolb  et 

al.,  433,  452. 
Moore  v.  Long  Beach,  337. 
Moore  v.  Railway  Co.,  640. 
Moore  v.  Reading.  238. 
Moore  v.  Rider,  244. 
Moran  v.  Portland  S.  P.  Co.,  58. 
Moran  Bros.  v.  Railway  Co.,  559. 
Mores  v.  Norris,  410. 
Morgan  v.  Rarey,  358. 
Moriarty  v.  Porter,  125. 
Morningstar  v.  Cunningham,  211. 
Morris  v.  Nixon,  252. 
Morris  Canal  v.  Fisher,  224. 
Morris  Canal,  etc.  Co.  v.  Lewis,  317. 
Morrison  v.  Street-Car  Co.,  655. 
Morse  v  Crawford,  31.3. 
Morse  v.  Woods.  397. 
Moses  V.  Boston,  etc.  Ry.  Co.,  520,  522, 

556.  583. 
Moses  V.  Port  Townsend,  175. 
Moses  V.  Railway  Co.,  185,  439. 
Moses  V.  Trice,  393. 
Mosher  v.  Railway  Co.,  633. 
Moss  V.  Battis,  410. 
Moulton  V.  Phillips.  202. 
]Mowers  v.  Fethers.  367,  373. 
Moylan  v.  Second  Ave.  R.  Co.,  655. 
Moynahan  v.  Moore,  298. 
Mt.  Holly  Turnpike  v.  Ferree,  247,  349. 
Mudgett  V.  Bay  State,  etc.,  686. 
Muirhead  v.  Kilpatrick,  316. 


xlvi 


TABLE   OF    CASES. 


Eeferences  are  to  sections. 


Muldoon  V.  Seattle,  etc.  Co.,  661,  664. 
Mulhall  V.  Quinn,  226. 
Mullan  V.  Railway  Co.,  632. 
Mulligan  v.  Northern  Pac.  Ry.  Co., 

182. 
Mulligan  v.  Railway  Co.,  530. 
Munger  v.  Albany  City  Nat.  Bank, 

313. 
Murphy  v.  Partsch,  292. 
Murray  v.  Marshall,  373. 
Murray  v.  Warner,  569. 
Murris  v.  N.  H.  S.  S.  Co.,  517. 
Muschamp  v.  Railway  Co.,  529,  530. 
Muster  v.  Railwaj^  Co.,  208. 
Myers  v.  Bank.  233. 
Myers  v.  Cottrill,  367. 
Myers  v.  Walker,  204 
Myning  v.  Railway  Co.,  654. 
Myrick  v.  Railway  Co.,  487,  528. 
Nagler  v.  Pacific  Wharf  Co.,  251. 
Nansen  v.  Jacobs,  423. 
Nasli  V.  Page,  172. 

Nashville,  etc.  Ry.  Co.  v.  Jackson,  472. 
Nashville,  etc.   Ry.   Co.  v.  Jones,  627. 
Nashville,  etc.   Ry.   Co.  v.  King,  472. 
National  Bank  v.  Crocker,  254. 
National  Bank  v.  Langdon,  172. 
National  Bank  v.  Loomis,  307. 
National  Bank  v.  Wilder,  178. 
National  Bank  of  Commerce  v.  Rail- 
way Co.,  452,  462. 
National  Bank  of  Illinois  v.  Baker, 

303,  313. 
National  Revere  Bank  v.  Morse,  244. 
Naugatuck    Ry.    Co.    v.    Beardsley 

Scythe  Co.,  544. 
Naugatuck    Ry.    Co.  v.   Waterbury 

Button  Co.,  530. 
Navigation  Co.  v.  Bank,  515. 
Neal  v.  Wilcox,  336,  367. 
Negus  V.  Simpson,  213. 
Neill  &  Ellington  v.  Produce  Co.,  255. 
Neimeyer  Lumber  Co.    v.   Railway 

Co.,  590. 
Nelson  v.  Brown,  175. 
Nelson  v.  Eaton,  243. 
Nelson  v.  Edwards,  313. 
Nelson  v.  Railway  Co.,  435. 
Nelson  v.  Wellington,  313. 
Nesbitt  V.  Macon  Bank,  238. 


Nevan  v.  Roup.  69. 

Newberry  v.  Detroit  L.  S.  Iron  Co.. 

251. 
New  Brunswick  S.  S.  Co.  v.  Tiers, 

434. 
New  England  v.  Railway  Co.,  549. 
New  England  Exp.  Co.  v.  Railway 

Co.,  550. 
New  England  Ins.  Co.  v.  The  Sarah 

Ann,  542. 
Newhall  v.  Railway  Co.,  260. 
New  hall  v.  Varges,  559. 
Newhall,  Ex  parte,  84 
New  Hampshire  &  C.  Co.  v.  Camel, 

558. 
New  Jersey,  etc.  Co.  v.  Bank,  697. 
New  Jersey,  etc.  Co.  v.  Brockett,  647, 

648. 
New  Jersey,  etc.  Co.  v.  Pollard,  721. 
New  Jersey,  etc.  Co.  v.  Railway  Co., 

138. 
New  Jersey  Steam  Transp.    Co.   v. 

Mechanics'  Bank,  509,  520,  522. 
New  Orleans  Canal  &  B.  Co.  v.  Mont- 
gomery, 270. 
Newsome  v.  Davis,  317. 
Newton  v.  Fay,  252. 
Newton  v.  Trigg,  352. 
New  York,  etc.  Co.  v.  Cromwell,  457. 
New  York,  etc.  Co.  v.  Enches,  656. 
New  York.  etc.  Ry.  Co.  v.  New  Jersey 

El.  R  Co.,  128,  129,  151. 
New  York,  etc.  Ry.  Co.  v.  Schuyler, 

249. 
New  York,  etc.  Ry.  Co.  v.  Standard 

Oil  Co.,  538. 
New  York  Cent.  Ry.  Co.  v.  Davis, 

557,  558. 
NicoU  V.  Railway  Co..  693. 
Nichols  V.  HoUiday,  387. 
Nichols  V.  Smith,  435. 
Xitro-Glycerine  Case,  444 
Noble  V.  Railway  Co.,  608. 
Norfolk,  etc.  Co.  v.  Barnes,  558. 
Norfolk,  etc.  Co.  v.  Reeves,  517. 
Norfolk,  etc.  Ry.  Co.  v.  Shott,  598. 
North  Chicago  Street-car  Co.  r.  Baur, 

651. 
North  Chicago  Street-car  Co.  v.  Cook, 

617. 


TABLE    OF    CASES. 


xlvii 


References  are  to  sections. 


North  Chicago  Street-car  Co.  v.  Will- 
iams, 595. 
North  Chicago,  etc.  Co.  v.  Thurston, 

597. 
North  Chicago,  etc.  Co.  v.  Zeiger.  724. 
Northern   German   Lloyd   v.  Heale, 

545. 
Northern    Pac.    Co.    v.    Commercial 

Nat.  Bank,  561. 
Northern   Pac.   Ry.   Co.    v.  Herbert, 

623. 
Northern  Pac.  Ry.  Co.  v.  Pauson,  636. 
Northwest  Nat.  Bank  v.  Thompson 

Mfg.  Co..  276. 
Norton  v.  Plumb.  231. 
Norton  v.  Woodruff,  179. 
Norway  Plains  Co.  v.  Boston,  424,  581, 

582. 
Norwegian  Plow  Co.  v.  Clark,  23. 
Norwood  V.  Guerdon,  269. 
Nugent  V.  Smith,  408,  412. 
Nutting    V.   Connecticut  River  Ry. 

Co.,  528,  530. 
Oakes  v.  Railway  Co.,  671,  673,  674. 
Gates  V.  National  Bank,  243. 
Oatis  V.  Gardner,  250,  251. 
Ober  V.  Gallagher,  270. 
O'Brien  v.  Gilchrist,  462. 
O'Brien  v.  Norris,  588. 
O'Brien  v.  Railway  Co.,  646. 
Ocean  S.  S.  Co.  v.  Way,  673. 
O'Connor  v.  Forster.  456. 
O'Dell  V.  Leyda..24. 
O'Flaherty  v.  Railway  Co.,  724. 
Offerman  v.  Union  Depot  Co.,  656. 
Ogden  V.  Lathrop,  303. 
Ogdensburg  Ry.  Co.  v.  Pratt,  530. 
Ohio,  etc.  Co.  v.  Selby,  579. 
Ohio,  etc.  Ry.  Co.  v.  Nickless,  660. 
Ohio,  etc.  Ry.  Co.  v.  Tyndall,  600. 
Ohio,  etc.  Ry.  Co.  v.  Voigt,  598. 
O'Kelley  v.  Ferguson,  277. 
Olds  V.  Railway  Co.,  665. 
01i%'er  V.  Green,  177. 
Omalia,  etc.   Ry.  Co.   v.  Enxminger, 

724. 
Opperheimer  v.  U.  S.  Exp.  Co.,  482, 

510. 
Orange  County  Bank  v.  Brown,  482. 
Orchard  v.  Bush,  339. 


Oregon  Short  Line,  etc.  Co.  v.  North- 
ern Pacific  Ry.  Co.,  544 

Orndorff  v.  Adams  Exp.  Co.,  520. 

O'Rourke  v.  C,  B.  &  Q.  Ry.  Co., 
645. 

O'Rourke  v.  Railway  Co.,  480. 

Orr  V.  Railway  Co.,  536. 

Ortt  V.  Railway  Co.,  530. 

Osgood  V.  Nichols,  53. 

Ostrander  v.  Brown,  575. 

Ouderkirk  v.  Bank,  79. 

Owen  V.  Boyle,  171. 

Oxford  V.  Prior,  369. 

Oxlade  v.  Railway  Co.,  550. 

Oxley  V.  Railway  Co.,  693. 

Pacific  Exp.  Co.  v.  Darnell  Bros.,  494. 

Pacific  Exp.  Co.  v.  Shearer,  561. 

Pacific,  etc.  Ry.  Co.  v.  Hazen,  500. 

Pacific,  etc.  Ry.  Co.  v.  Hollowell,  500. 

Pacific,  etc.  Ry.  Co.  v.  Stern,  etc.,  562. 

Pacific  Coast  S.  S.  Co.  v.  Bancroft- 
Whitney  Co.,  516. 

Packer  v.  Getman,  187,  431,  433. 

Paine  v.  Packard,  307. 

Palin  V.  Reid,  338. 

Palmer  v.  Canal  Co.,  614,  625. 

Palmer  v.  Grand  Junction  Ry.  Co., 
488. 

Palmer  v.  Railway  Co.,  496,  654. 

Paramore  v.  Railway  Co.,  457. 

Parish  v.  Stone,  317. 

Parker  v.  Flagg,  413. 

Parker  v.  Railway  Co.,  515. 

Parker  v.  Smith,  84. 

Parker  v.  Union  Ice  &  Salt  Co.,  207. 

Parmelee  v.  Lowitz,  418. 

Parmelee  v.  McNulty,  418. 

Parrott  v.  Byers,  351. 

Parry  v.  Squire,  205. 

Parshall  v.  Eggert,  273. 

Parsons  v.  Hardy,  469,  496. 

Parsons  v.  Monteith,  511. 

Pate  V.  Hoffman,  297. 

Patry  v.  Railway  Co.,  642. 

Pattison  v.  Culton  et  al.,  590. 

Pennington  v.  Railway  Co.,  645. 

Pennsylvania  Co.  v.  Holderman,  696. 

Penn.sylvania  Canal  Co.  v.  Burd,  427. 

Pennsylvania  Ry.  Co.  v.  American 
Oil  Works,  553,  591, 


xlviii 


TABLE    OF    CASES. 


References  are  to  sections. 


Pennsylvania  Ry.  Co.  v.  Anderson, 

637. 
Pennsylvania  Ry.  Co.  v.  Kilgore,  656. 
Pennsylvania  Ry.  Co.  v.  Marion,  65.5. 
Pennsylvania  Ry.  Co.  v.  Roy,  622. 
Pennsylvania  Ry.  Co.  v.  Stern  & Spei- 

gle,  563. 
Pennsylvania  Ry.  Co.  v.  Schwarzan- 

berger,  520,  530. 
Pennsylvania,  etc.  Ry.  Co.  v.  Bray, 

634. 
Pennsylvania,  etc.  Ry.  Co.  v.  Meriam, 

639. 
Pennsylvania  Steel  Co.  v.  Railway 

Co.,  591. 
Pearson  v.  Duane,  610. 
Pease  v.  Railway  Co.,  646. 
Peck  V.  Railway  Co.,  543,  613. 
Peet  V.  Railway  Co.,  714. 
Pender  v.  Robins,  405. 
Penny  v.  Lynn,  225. 
People  V.  Elmore,  251. 
People  V.  Gallagher,  613. 
People  V.  Jones,  332. 
People  V.  King,  613. 
People  V.  Robinson,  250. 
People  V.  Utica  Cement  Co.,  469 

Peoria,  etc.  Co.  v.  Mclntyre,  58. 

Peoria,  etc.  Co.  v.  Reynolds,  721. 

Pereira  v.  Railway  Co.,  462. 

Perkins  v.  Railw^ay  Co.,  664. 

Perre  v.  Castro,  298. 

Perry  v.  Thompson,  509. 

Pershing  v.  Railway  Co.,  633,  721. 

Peters  v.  Elliot,  254,  256. 

Peters  v.  Jamestown  Bridge  Co.,  271. 

Pettigrew  v.  Barnham,  360. 

Petty  V.  Overall,  292. 

Peugh  V.  Davis,  252,  281. 

Philadelphia  v.  Quigley,  706. 

Philadelphia  v.  Rice,  634. 

Philadelphia,  etc.  Ry.  Co.  v.  Derby, 
599,  613. 

Philadelphia,  etc.  Ry.  Co.  v.  Holflich, 
644. 

Philadelphia  Traction  Co.  v.  Orbann, 
597. 

Philler  v.  Jewett.  234. 

Phillips  v.  Earle,  4.50. 

Phcenix  Ins.  Co.  v.  Church,  244. 


Phoenix  Ins.  Co.  v.  Erie  &  W.  Transp. 

Co.,  513. 
Pickens  v.  Diecker,  208. 
Pickens  v.  Railway  Co.,  646. 
Pickford  v.  Grand  Junctions  Ry.  Co., 

444,  543. 
Piedmont  Mfg.  Co.  v.  Columbia  River 

Co.,  403,  409. 
Pierce  v.  Faunce,  370. 
Pierce  v.  Railway  Co.,  411. 
Pierce  v.  Robinson.  353. 
Pierce  v.  Schenck,  141. 
Pierce  v.  Southern  Pac.  Ry.  Co.,  510. 
Pierson  v.  Duane.  613. 
Pingree  v.  Railway  Co.,  493. 
Pmkerton  v.  Woodard,  337,  353.  373. 
Piper  V.  Manny,  349,  360. 
Pittsburg,  etc.  Co.  v.  Caldwell,  653. 
Pittsburg,  etc.  Co.  v.  Morton,  709. 
Pittsburg  Ry.  @o.  v.  Barrett,  183. 
Plaister  v.  Navigation  Co.,  472. 
Piatt  V.  Hibbard,  206. 
Plessy  V.  Ferguson,  613. 
Pollard  V.  Vinton,  253,  259,  439,  463. 
PoUect  V.  Landis,  387. 
Pomeroy  v.  Smith,  278. 
Ponce  V.  McElvey,  287. 
Pontiac  Nat.  Ba,nk  v,  Lungan,  24. 
Pool  v.  Railway  Co.,  634. 
Popham  V.  Barnard.  517. 
Porter  v.  Chicago,  etc.  Ry.  Co.,  437. 
Porter  v.  Railwaj'  Co.,  656. 
Porterfield  v.  Humphreys,  413. 
Potter  v.  Thompson,  314. 
Potts  v.  Plaisted,  298. 
Potts  V.  Railway  Co.,  558. 
Powell  V.  Robinson,  63. 
Powers  V.  Jlitchell,  193. 
Powers  V.  Railway  Co.,  603. 
Pratt  V.  Railway  Co.,  489. 
Prescott  V.  Hull.  241. 
Preston  v.  Prathers.  94. 
Preston  v.  Witherspoon,  178. 
Price  V.  Dime  Savings  Bank,  233. 
Price  V.  Hartshorn,  538. 
Price  V.  Railway  Co.,  561,  644 
Price  V.  Powell,  574,  696.         , 
Proctor  V.  Nicholson,  37.5,  378. 
Providence  Coal  Co.  v.  Providence, 
etc.  Ry.  Co.,  550. 


TABLE    OF    CASES. 


xlix 


References  are  to  sections. 


Pullman  Car  Co.  v.  Adams,  641. 

Pullman  Car  Co.  v.  Gavin,  684. 

Pullman  Car  Co.  v.  Gaylord,  643. 

Pullman  Car  Co.  v.  Lowe,  333,  337, 
642. 

Pullman  Car  Co.  v.  Martin,  684. 

Pullman  Car  Co.  v.  Mathews,  684. 

Pullman  Car  Co.  v.  Pollock,  641. 

Pullman  Car  Co.  v.  Smith,  333,  641. 

Purvis  V.  Coleman.  349.  359,  686. 

Putnam  v.  Railway  Co.,  596. 

Quarman  v.  Burnett,  708. 

Quigley  v.  Railway  Co.,  647. 

Quimby  v.  Railway  Co.,  661,  664. 

Racho  v.  Detroit,  716. 

Ragan  v.  Aiken,  550. 

Railway  Co.  v.  Axley,  665. 

Railway  Co.  v.  Berry,  671,  677 

Railway  Co.  v.  Barrett,  515. 

Railway  Co.  v.  Bausch,  664. 

Railway  Co.  v.  Beebe,  664. 

Railway  Co.  v.  Beggs,  664. 

Railway  Co.  y.  Berchfield,  710. 

Railway  Co.  v.  Bowler,  etc.  Co.,  673. 

Railway  Co.  v.  Boyce,  673. 

Railway  Co.  v.  Boyd.  515. 

Railway  Co.  v.  Brewing  Co.,  536. 

Railway  Co.  v.  Brooks^  604. 

Railway  Co.  v.  Campbell,  515. 

Railway  Co.  v.  Capps,  674. 

Railway  Co.  v.  Carter,  515. 

Railway  Co.  v.  Central  Stockyards, 
171,  172. 

Railway  Co.  v.  Cobb,  713. 

Railway  Co.  v.  Coggins,  605. 

Railway  Co.  v,  Conklin,  675. 

Railway  Co.  v.  Cox,  655. 

Railway  Co.  v.  Cravens.  515, 

Railway  Co.  v.  Curtis,  471. 

Railway  Co.  v.  Dickerson,  665, 

Railway  Co.  v.  Ellison,  621. 

Railway  Co.  v.  Emminger,  724. 

Railway  Co.  v.  Fire  Ass'n  of  Phila- 
delphia, 479. 

Railway  Co.  v.  Fraloff,  523,  668,  672, 
677. 

Railw-ay  Co.  v.  Frame,  714. 

Railway  Co.  v.  Gage,  543. 

Railway  Co.  v.  Gilbert,  514. 

Railway  Co.  v.  Hale,  494. 


Railway  Co.  v,  Hamilton.  489. 
Railway  Co.  v.  Hawkins,  489. 
Railway  Co.  v.  Hawks,  662,  664. 
Railway  Co.  v.  Henderson,  664. 
Railway  Co.  v.  Huntly,  621. 
Railway  Co.  v.  Ives,  655. 
Railway  Co.  v.  Jenkins,  183. 
Railway  Co.  v.  Johnson,  714. 
Railway  Co.  v.  Juntzer,  500. 
Railway  Co.  v.  Jury,  515. 
Railway  Co.  v.  Keefer.  664. 
Railway  Ca  v.  Kinchen,  569. 
Railway  Co.  v.  Kirk  wood,  533,  536. 
Railway  Co.  v.  Lockhart,  714. 
Railway  Co.  v.  Lockwood,  41,509,515. 
Railw^ay  Co.  v.  Lowell,  605. 
Railway  Co.  v.  Lyon,  688. 
Railway  Co.  v.  McCool,  183. 
Railway  Co.  v.  M'Gahey,  672,  688. 
Railway  Co.  v.  McLaughlin,  660. 
Railway  Co.  v.  Manufacturing     Co., 

515,  522,  528. 
Railw^ay  Co.  v.  Manchester  Mills,  512. 
Railway  Co.  v.  Mehlsack,  604. 
Railway  Co.  v.  Miller,  655,  711. 
Railway  Co.  v.  Mudford,  714. 
Railway  Co.  v.  Pollard,  622. 
Railway  Co.  v.  Pratt,    457,   510,   528, 

531,  536. 
Railway  Co.  v.  Quigley,  706. 
Railway  Co.  v.  Read,  664. 
Railway  Co.  v.  Reynolds,  515. 
Railway  Co.  v.  Scott,  183. 
Railway  Co.  v.  Shepherd,  673,  674. 
Railway  Co.  v.  Stacey,  616. 
Railway  Co.  v.  State,  672. 
Railway  Co.  v.  Stevens,  664,  676. 
Railway  Co.  v.  Stockard,  534. 
Railway  Co.  v.  Stockyard  Co.,  676. 
Railway  Co.  v.  Swift,  669,  672. 
Railway  Co.  v.  Thompson,  581. 
Railway  Co.  v.  Walrath,  721. 
Railway  Co.  v.  Williams,  721. 
Ramiug  v.  Metropolitan  St.  Ry.  Co., 

606. 
Rankin  v.  Shepherdson,  127,  128. 
Ransome  v.  Eastern  Counties  Ry.  Co., 

550. 
Raphael  v.  Pickford,  574. 
Ratiibun  v.  Steamboat  Co..  569. 


TABLE    OF    CASES. 


References  are  to  sections. 


Rawls  V.  Deshler,  463. 

Rawson  v.  Holland,  534. 

Ray  V.  Bank  of  Kentuck3%  198. 

Ray  V.  Ross,  291. 

Raynor  v.  Brewing,  724. 

Read  v.  Amedon,  365. 

Read  v.  Spaulding,  421,  471. 

Readhead  v.  Railway  Co.,  625,  626. 

Rfeddington  v.  Traction  Co.,  654. 

Redmond  v.  Liverpool  S.  S.  Co.,  575, 

Reg.  V.  Hill,  171. 

Reg.  V.  Reymer,  348. 

Reed  v.  Wilmington  S.  S.  Co.,  468. 

Reeves  v.  Plough,  316. 

Reeves  v.  Scully,  270. 

Reichenbach  v.  McKee,  278. 

Reinstine  v.  Watts,  59. 

Rex  V.  Ivans,  343,  345. 

Reynolds  v.  Railway  Co.,  588,  589,  645. 

Rhinelander  v.  Barrow,  318. 

Rice  V.  Boston  R.  Corp.,  591. 

Rice  V.  Boston  Ry.  Co.,  183. 

Rice  V.  Dwight  Mfg.  Co.,  516. 

Rice  V.  Nixon,  178. 

Rice  V.  Railway  Co.,  183,  509,  581. 

Rice  V.  Stone,  226. 

Richmond  v.  Jefferson,  632. 

Richmond  v.  Payne,  512. 

Richmond  v.  Second  Ave.   Ry.  Co., 

656. 
Richmond  v.  Smith,  348,  352. 
Richmond,  etc.  Co.  v.  Scott,  656. 
Richards  v.  Rice,  235. 
Richards  et  al.  v.  Doe  et  al..  464. 
Richardson  v.  Nathan,  255. 
Richardson  v.  Olmstead,  175. 
Richardson  v.  Wyman,  312. 
Richardson  et  aL  v.  Goddard  et  al., 

575. 
Richberger  v.  American  Ex.  Co.,  632. 
Ricketts  v.  Railway  Co..  655,  708. 
Rickerson  v.  Railway  Co.,  530. 
Rider  v.  Union  India  Rubber  Co.,  75. 
Riley  v.  Home,  464. 
Rives  V.  M'Losky,  318. 
Roberts  v.  Stuyvesant,  63. 
Roberts  v.  Thompson,  302. 
Robertson  v.  Railway  Co.,  640. 
Robins  &  Co.  v.  Gray,  379,  381. 
Robinson  v.  Baker,  383,  555. 


Robinson  v.  Crittenden,  575. 
Robinson- V.  Larrabee,  73.  74,  386. 
Robinson  v.  Stafford,  300. 
Robinson  et  al.  v.  Memphis,  etc.  Ry. 

Co..  462. 
Rochester  v.  Jones,  255. 
Rock  V.  Nichols,  251. 
Rockwell  V.  Proctor,  356. 
Roderick  v.  Railway  Co.,  483. 
Rogers  v.  Grothe,  153. 
Rogers  v.  Kennebec  S.  Co.,  596,  661, 

004. 
Rogers  v.  Railway  Co.,  664. 
Rogers  v.  Stophel,  174,  201,  204. 
Rogers  v.  Ihomas,  586. 
Rogers  v.  Weir,  63.     . 
Rogers   Locomotive,    etc.  Works  v. 

Railway  Co.,  449. 
Rome  Ry.  Co.  v.  Sullivan-Cabot  Co., 

530. 
Rommel  v.  Schambacher,  632. 
Root  V.  Long  Island  Ry.  Co.,  550. 
Root  V.  Railway  Co.,  641. 
Root  V.  Sleeping  Car  Co.,  641,  685. 
Root  V.  Great  Western  Ry.  Co.,  524, 

530,  531. 
Rosa  V.  Brotherson,  244. 
Rose  V.  Railway  Co.,  664. 
Roseman  v.  Railway  Co.,  648. 
Rosenfield  v.  Express  Co.,  715. 
Rosenfield  v.  Railway  Co..  523. 
Rosenplaenter  v.  Rossele,  375. 
Ross  V.  Barker,  305. 
Ross  V.  Leggett,  707. 
Ross  V.  Railway  Co.,  481. 
Ross  V.  The  Ship  Active,  542. 
Roulston  V.  McClelland,  80. 
Rounds  V.  Railway  Co.,  632. 
Rouser  v.  Railway  Co.,  634. 
Rowan  v.  State  Bank,  291. 
Rowley  v.  Bigelow,  179,  553,  586. 
Rozet  V.  McClennan,  300,  307. 
Rubens     v.     Ludgate    Hill    Steam 

Transp.  Co..  513.  516. 
Rubenstein  v.  Cruikshanks,  358,  360. 
Rucker  v.  Donovan,  591. 
Rudell  et  al.  v.  Ogdensburg  '^ransp. 

Co.,  506,  535. 
Runyan  v.  Railway  Co..  671,  676. 
Russell  V.  Butterfield,  366. 


TABLE    OF    CASES. 


References  are  to  sections. 


Russell  V.  Fagan,  338. 

Russell  V.  Southard,  253. 

Russell  V.  Sunbury,  716. 

Russell  Mfg.  Co.  v.  New  Haven  S.  S. 

Co.,  538, 578. 
Ryan  v.  Gilmer,  617. 
Ryder  v.  Hall,  464. 
Sadovvski  v.  Car  Co.,  655. 
Sager  v.  Portsmouth,  457. 
Sales  V.  Western  Storage  Co.,  621. 
Salinger  v.  Simmons,  433. 
Saltus  V.  Everett,  259,  555. 
Samms  v.  Stewart  &  McKibben,  399, 

410. 
Samuels  v.  Railway  Co.,  550. 
San  Antonio  Nat.  Bank  v.  Blocker, 

231. 
San  Antonio  Ry.  Co.  v.  Branett,  513. 
Sanford  v.  Railway  Co.,  424,  550. 
Sandys  v.  Florence,  369. 
Sargent  v.  Franklyn  Ins.  Co.,  251. 
Sargent  v.  Gile,  80. 
Sattler  v.  Hallock.  24,  140. 
Savannah,  etc.  Ry.  Co.  v.  Bonaud,  658. 
Savings  Bank  v.  Thompson,  319. 
Saward  v.  Stevens,  462. 
Scaling  v.  Pullman  Car  Co.,  641. 
Scammon  v.  Wells.  Fargo  &  Co.,  696. 
Scerfe  v.  Morgan.  163. 
Schaller  v.  Railway  Co.,  510. 
Scheffer  v.  Corson,  367. 
Schmidt  v.  Blood,  186,  206. 
Schmidt  v.  Steamship  Pennsylvania, 

590. 
Sclineider  v.  Evans,  556. 
Schnips  V.  Strum,  207. 
Schoepper  v.  Hancock,  etc.  Co.,  655. 
Schooner  Freeman  v.  Buckingham, 

439. 
Schraff  v.  Meyer,  255. 
Schroyer  v.  Lynch,  389,  390. 
Scofield  v.  Railway  Co.,  550. 
Scott  V.  Churchill,  369. 
Scott  V.  Delahunt,  162. 
Scott  V.Nat.  Bank  of  Chester  Valley, 

52.  189. 
Scott    V.    Pequonnock    Nat.    Bank, 

251. 
Scott  V.  Railway  Co.  634. 
Scripps  V.  Riley,  706. 


Scripture  v.  Francestown  Soapstone 

Co.,  251. 
Sears  v.  Railway  Co.,  658. 
Seasongood  v.  Railway  Co.,  681. 
Seasongood    v.   Transportation    Co., 

443. 
Second  Nat.  Bank  v.  Walbridge,  179, 

264. 
Secord  v.  Buffalo,  etc.  Co.,  559. 
Sell  v.  Ward,  302. 
Sergeant  v.  Railway  Co.,  251. 
Seway  v.  HoUoway,  439. 
Sexton  V.  Graham,  211. 
Seybolt  v.  Railway  Co.,  598. 
Sej'mour  v.  Wyckoff,  189. 
Shadford  v.  Ann  Arbor  St.  Ry.  Co., 

203. 
Shafer  v.  Gilmer,  621. 
Shannon  v.  Boston,  etc.  Co.,  596. 
Shapley  v.  Abbott,  463. 
Sharkey  v.  Lake  Roland  Ry.  Co.,  656. 
Sharp  V.  Grey,  626. 
Shaw  V.  Berry,  348,  349,  352. 
Shaw  V.  Railway  Co.,  257,  259. 
Sheffer  v.  Willoughby,  371. 
Sheldon  v.  Railway  Co.,  654. 
Shelton   v.   Merchants'  Transp.  Co., 

452. 
Shelton  v.  Railway  Co.,  642. 
Shepherd  v.  Railway  Co.,  193. 
Shepherdson  v.  Cary,  176. 
Sheppard,  etc.  Co.  v.  Borroughs,  590. 
Shewalter  v.  Railway  Co.,  531. 
Shields  v.  Lozier,  298. 
Shipman  v.  ^tna  Ins.  Co.,  251. 
Shoecraft  v.  Bailey,  337. 
Shriver  v.  Railway  Co.,  536. 
Shultz  V.  Wall,  359. 
Sibley  v.  Aldrich,  349,  352,  357. 
Sibley  v.  Quinsigamond  Nat.  Bank, 

251. 
Silverman  v.  Railway  Co.,  710. 
Simons  v.  Railway  Co.,  515. 
Simpson  v.  Dufour,  492.  ' 
Simpson  v.  Railway  Co.,  494 
Sinclair  v.  Murph}%  53. 
Singer  JIfg.  Co.  v.  Miller,  379. 
Sinker.  Davis  &  Co.  v.  Green,  224. 
Sinsheimer  et  al.  v.  Whitely,  176. 
Sisson  V.  Cleveland,  etc.  Co.,  714. 


lii 


TABLE    OF    OASES. 


References  are  to  sections. 


Siter  V.  Jlovitz,  177. 

Sleath  V.  Wilson.  708. 

Slee  V.  Manhattan  Co.,  352. 

Sleeping-Car  Co.  v.  Deihl,  685. 

Sleevin  v.  Morrow,  302,  316. 

Sloan  V.  Railroad  Co.,  645. 

Siocum  V.  Fairchild,  520. 

Sloman  v.  Railroad  Co.,  674. 

Smiley  v.  Allan,  83. 

Smith  V.  American  Coal  Co.,  249. 

Smith  V.  Crescent  City   Live  Stock 

Co.,  250. 
Smith  V.  First  Nat.  Bank.  52,  198. 
Smith  V.  Jennings.  241. 
Smith  V.  Michigan  Cent.  Ry.  Co.,  488, 

489. 
Smith  V.  M.  H.  &  N.  Ry.  Co.,  487. 
Smith  V.  Missouri    Pac.  Ry.  Co.  462. 
Smith  V.  Nassau,  etc.  Ry.  Co.,  193,  674. 
Smith  V.  North  Carolina  Ry.  Co.,  520. 
Smith  V.  New  York  Cent.    Ry.    Co., 

411,  511,  536,  597,  721. 
Smith  V.  Railway  Co.,  470,  655. 
Smith  V.  Seward,  691. 
Smith  V.  St.  Paul,  etc.  Ry.  Co.,  596. 
Smitft  V.  Strout,  297. 
Smith  V.  Wilson,  356,  358,  360,  362. 
Smoot  V.  Railway  Co.,  613. 
Sneider  v.  Geiss,"360,  362,  363. 
Snow  et  al.  v.  Carruth,  452. 
Sonier  v.  Railwaj^  Co.,  654. 
Sonoma  Valley  Bank  v.  Hill.  296, 297. 
Southard  v.  Railwaj'  Co..  513. 
Southerland  v.  Railway  Co.,  661. 
Southern   Exp.  Co.  v.  Kaufman,  480. 
Southern  Exp.  Co.  v.   McVeigh,  421, 

567. 
Southern  Exp.  Co.  v.  Van  Meter,  561. 
Southern  Exp.   Co.  v.  Womack,  353, 

474. 
Southern,   etc.    Ry.   Co.   v.  Sanford, 

647. 
Southern  Ry.  Co.  v.  Hunter,  652. 
Southern  Ry.  Co.  v.  Wildman,  647. 
Spaulding  v.  Kendi'ick,  244. 
Spellman  v.  Rapid  Transit  Co.,  721. 
Spencer  v.  Clark,  267. 
Spice  V.  Bacon.  358. 
Spoflford  V.  Railway  Co.,  550. 
Spooner  v.  Manchester,  126,  127. 


Spring  V.  Hagar,  356.  358. 

Spring  V.  Haskell,  710. 

Sproul  V.  Hemmingway,  414. 

Spurgeon  v.  Collier,  253. 

Squire  v.  W^estern  Union  Telegraph 

Co..  512. 
Squire  et  al.  v.  Railway  Co.,  435,  512,. 

516. 
Stager  v.  Raihvay  Co.,  655. 
Stanley  v.  Bircher,  369. 
Stanton  v.  Eager,  179. 
Stanton  v.  Leland,  372. 
Starrett  v.  Barber,  291. 
Staub  V.  Kendrick,  671,  683. 
State  V.  Bryant.  176. 
State  V.  Cowdrey,  24. 
State  V.  Prew,  438. 
State  V.  Ferris,  250. 
State  V.  Goss.  444. 
State  V.  Hungerford,  684. 
State  V.  Lewis,  558. 
State  V.  Moore,  353. 
State  V.  Morse,  213. 
State  V.  Overton,  612,  676. 
State  V.  Peck,  558. 
State  V.  Railway  Co.,  550,  600. 
State  V.  Stevenson,  312. 
State  V.  Stockman,  24. 
State  V.  Washburn,  24. 
State  ex  rel.  v.  Railway  Co.,  446. 
State  Ins.  Co.  v.  Sax,  249. 
State  of  Nevada  v.  Pettineli,  250. 
Steamboat  Lynx  v.  King,  502. 
Steamboat  New  World  v.  King,  198,. 

411,  622. 
Stearns  v.  Bates,  287. 
Stedman  v.  Weiskittle,  305. 
Steel  V.  Flagg,  505. 
Steeper  v.  McKee,  312. 
Steers  v.  Liverpool  S.  S.  Co.,  306,  513, 

523. 
Steinman  v.  Wilkins,  163. 
Steinway  v.  Railway  Co.,  457,  634. 
Stephens  v.  Vaughan,  63. 
Sterns  v.  Marsh,  290,  300.  304, 
Stevens  v.  Railway  Co.,  193,  383. 

Stevenson  v.  Hart  et  al.,  563. 

f 

Stevenson  v.  West  Seattle,  etc.  Co.,. 

612. 
Stewart  v.  Davis.  136. 


TACLE  OF  CASES, 


liii 


References  are  to  sections. 


Stewart  v.  Lansing.  224. 

Stewart  v.  Lehigh  Valley  Ry.  Co., 
550. 

Stewart  v.  Plioenix  Ins.  Co.,  178. 

Stewart  v.  Railway  Co.,  513. 

Stewart  v.  Stone,  140. 

Stewart,  etc.  Co.  v.  Gracy  &  Bro.. 
489. 

Stickney  et  al  v.  Allen,  712. 

Stimpson  v.  Railway  Co.,  672,  673. 

St.  Louis  V.  Fire  Ass'n  of  Philadel- 
phia, 479. 

St.  Louis  V.  Greenthal,  632. 

St.  Louis  V.  Kilpatrick,  647. 

St.  Louis  V.  Myer.  632. 

St.  Louis,  etc.  Co.  v.  Hurst,  517. 

St.  Louis,  etc.  Co.  v.  Insurance  Co., 
430,  462. 

St.  Louis,  etc.  Ry.  Co.  v.  Adams,  462. 

St.  Louis,  etc.  Ry.  Co.  v.  Cantrell. 
655. 

St.  Louis,  etc.  Ry.  Co.  v.  Knight,  182, 
430. 

St.  Louis,  I.  M.  etc.  Ry.  Co.  v.  Com- 
mercial Union  Ins.  Co.,  439. 

Stock  V.  Harris.  391. 

Stockyard  Co.  v.  Railway  Co.,  449. 

Stoddard  Mfg.  Co.  v.  Huntly,  78. 

Stokes  V.  Saltonstall.  721. 

Stollenwerck  v.  Thacher,  259,  563. 

Stone  V.  Lidderdale,  228. 

Stone  V.  Railway  Co.,  646. 

Story  V.  Krewson,  298. 

Strause  v.  Hotel  Co.,  388. 

Streeper  v.  McKee,  312. 

Strong  V.  Adams,  540. 

Strong  V.  Certain  Quantity  of  Wheat, 
534. 

Strong  V.  Grand  Trunk  Ry.  Co.,  464. 

Strong  V.  Stewart,  252. 

Strong  V.  Worden,  293. 

Strum  V.  Baker,  59. 

Sturgeon  v.  Railway  Co.,  489. 

Suia  V.  Omel,  342. 

Sullivan  v.  India  Rubber  Mfg.  Co., 
600. 

Sumner  v.  Hamlet,  240. 

Sunbolf  V.  Alford.  358,  375. 

Suydam  v.  Smitli,  179. 

Swan  V.  Bournes,  375,  376. 


Swann  v.  Smith,  358. 

Sweet  V.  Barne,  421,  696. 

Swift  V.  Mosley,  80. 

Swift  V.  Tyson,  244. 

Sykes  v.  People,  212. 

Syracuse,  etc.    Co.   v.  Railway   Co., 

724. 
Taggard  v.  Curtenious,  807. 
Talbott  V.  Railway  Co.,  708. 
Talcott  V.  Railway  Co..  674. 
Tannahill  v.  Tuttle,  273. 
Tarbell  v.  Sturtevant,  317. 
Taylor  v.  Chester,  229. 
Taylor  v.  Downey,  364. 
Taylor  v.  Grank  Trunk  Ry.  Co.,  622. 
Taylor  v.  Luther,  252. 
Taylor  v.  Monnot,  349. 
Taylor  v.  Page,  270. 
Taylor  v.  Turner,  308. 
Taylor  v.  Tyndall,  554. 
Tembler  v.  Palestine  Ice  Co.,  278. 
Tenbroeck   v.   Wells,  Fargo  &   Co., 

368,  369. 
Ten  ho  pen  v.  Walker,  706. 
Terre  Haute   Ry.  Co.  v.  Sherwood, 

510. 
Texas,  etc.  Ry.  Co.  v.  Dick,  605. 
Texas,  etc.  Ry.  Co.  v.  Bond,  646. 
Texas,  etc.  Ry.  Co.  v.  Fambrough,  489. 
Texas,  etc.  Ry.  Co.  v.  Hamilton,  625. 
Texas,  etc.  Ry.  Co.  v.  Smith,  600. 
Texas,  etc.  Ry.  Co.  v.  Williams,  632. 
Texas  Banking  Co.  v.  Turnley,  235. 
Textor  v.  Orr,  238. 
Thatcher  v.  Pray,  244. 
The  Amelie,  542, 
The  Boskenna  Bay,  577. 
The  Burlington,  414. 
The  Caledonia,  519. 
The  Civilta,  414. 
The  David  &  Caroline,  444. 
The  Delaware,  439. 
The  Edwin,  462. 
The  Ethel,  464. 
The  Gazelle,  546. 
The  Granite  State,  163. 
The  Gratitudine,  543. 
The  Harriman.  504. 
The  Huntress,  480. 
The  J.  P.  Donaldson,  414. 


liv 


TABLE    OF    CASES. 


References  are  to  sections. 


The  Julia  Blake.  o42. 

The  Keokuk.  462. 

The  Lady  Franklin,  439,  462,  464. 

The  Lady  Pike,  412. 

The  Loon,  462. 

The  L.  P.  Dayton,  414. 

The  Majestic,  469. 

The  Mary  Bradford.  464 

The  Niagara,  412. 

The  Nitro-Glycerine  Case,  476. 

The  Northern  Belle,  457, 473. 

The  Onward,  542. 

The  Packet,  542. 

The  Prize  Cases,  474. 

The  Propellor  Commerce,  412. 

The  Russell  Mfg.  Co.  v.  The    New 

Haven  S.  S.  Co.,  578. 
The  Schooner  Emma  Johnston,  412. 
The  Schooner  Freeman.  462. 
The  Schooner  Reeside,  413. 
The  Scio,  163. 
The  St.  Joseph,  163. 
The  Starlight.  163. 
The  Success,  537. 
The  Transp.  Line  v.  Hope,  414. 
The  Webb,  414. 
The  Wellington,  462. 
The  Westchester,  etc.  Ry.  Co.  v.  Miles, 

612.  613. 
The  Willie  v.  Sandhovel,  430. 
Thickstone  v.  Howard,  353. 
Thomas  v.  Boston  Ry.  Co.,  424,  581, 

583. 
Thomas  v.  Day,  193. 
Tliomas  v.  Snyder,  545. 
Thomas,  etc.  Co.  v.  Railway  Co.,  710. 
Thompson  v.  Dill.  292. 
Thompson  v.  Dominy,  179. 
Thompson  v.  Fargo,  696. 
Thompson  v.  Onley,  242. 
Thompson  v.  Patrick,  290. 
Thompson  v.  Thompson,  177. 
Thompson  v.  Trusdale,  633. 
Thompson  v.  Railway  Co.,  698. 
Thorington  v.  Smith,  474. 
Thorn  v.  Bank,  293. 
Tibby  v.  Railway  Co.,  660. 
Tiederaan  v.  Knox.  254. 
Tierber  v.  Burrows,  360. 
Tierney  v.  Railway  Co.,  444,  501. 


Tiffant  v.  St.  Johns,  559. 
Titus  V.  Railway  Co.,  203. 
Toledo,  etc,  Co.  v.  Beggs,  640. 
Toledo,  etc.  Co.  v.  Brooks,  640. 
Toledo,  etc,  Co.  v.  Gilvin,  4.52. 
Toledo,  etc,  Co,  v.  Crush,  629. 
Toledo,  etc.  Co.  v.  Hamilton,  489. 
Toledo,  etc.  Co.  v.  Marsh,  647. 
Toledo,  etc,  Co.  v.  Pence,  609. 
Toledo,  etc.  Co.  v.  Railway  Co.,  662. 
Toledo,  etc.  Co.  v.  Roberts,  456. 
Toledo,  etc.  Co.  v,  Thompson,  489. 
Tom  Boy  Gold  Mine  Co,  v.  Green,  394 
Tooke  V.  Newman,  317. 
Torry  v.  Bank  of  Orleans,  305. 
Toub  V.  Schmidt,  338, 
Towne  v,  Wiley,  14 
Towson  V.  Havre  de  Grace  Bank,  338, 

365. 
Toy  V,  Long  Island  Co.,  516. 
Transit  Co.  v.  Venable,  600. 
Transportation  Co.  v.  Dater,  515. 
Transportation  Co.  v.  Hope,  414 
Transportation  Co,  v.  Leysor,  515. 
Transportation  Co.  v.  Newhall,  530. 
Travis  v,  Thompson,  544. 
Treadwell  v.  Davis,  378, 
Treadwell  v,  Whittier,  623,  627, 
Trevor  v.  Railway  Co.,  431. 
Trezona  v.  Railway  Co.,  637,  644. 
Trimble  v.  Railway  Co.,  468,  674  676, 
Tripp  V.  Brovvnell,  326. 
Trowbridge  v.  Chapin,  437. 
Trumbull  v.  Erickson,  631. 
Tucker    v.    New    Hampshire     Sav. 

Bank,  343. 
Tuff  V.  Warman,  651. 
Tuller  V.  Talbot,  621. 
Turney  v.  Wilson.  410. 
Turrell  v,  Crawley,  375. 
Tuttle  v,  Robinson,  238. 
Tuxworth  V.  Moore,  176,  254,  277. 
Twomley  v.  Central  Park  Ry.  Co., 

657. 
Tyson  v,  Ewing,  706. 
Udell  V.  Street  Ry.  Co.,  607. 
Ulrich  V.  Railway  Co.,  661.      f 
Underbill  v.  Railway  Co.,  654. 
Union  Express  Co.  v.  Graham,  443, 
Union  Express  Co.  v,  Hepner,  432. 


TABLE    OF    CASES. 


Iv 


References  are  to  sectiqns. 


Union  Express  Co.  v.  Ivey,  597. 
Union  Pac.  Ry.  Co.  v.  Nifehols,  597, 

640. 
Union  Pac.  Ry.  Co.  v.  United  States, 

550. 
Union  Trust  Co.  v.  Rigdon,  313,  318. 
United  States  v.  Barney,  375. 
United  States  v.  Power.  399. 
United  States  v.  Washington,  613. 
United  States  Exp.  Co.  v.  Backman, 

421. 
United  States  Exp.  Co.  v.  Council, 

510. 
United  States  Exp.  Co.  v.  Hutchins, 

561. 
United  States  Exp.  Co.  v.  Keefer,  569. 
United  States  Exp.  Co.  v.  Kinchin, 

695. 
United  States  Exp.  Co.  v.  Rush  et  al., 

530. 
Upham  V.  Detroit,  etc.  Co.,  608. 
Van  Ballen  v.  Dean,  539. 
Van  Blarcom  v.  The  Broadway  Bank, 

277. 
Van  Buren  v.  Oimstead,  252. 
Van  Buskirk  v.  Roberts,  658. 
Vance  v.  Throckmorton.  349,  352. 
Vandewater  v.  Mills,  462. 
Van  Dusen  v.  Railway  Co.,  645. 
Van  Eman  v.  Stanchfield,  287, 
Van  Hooser  v.  Corey,  226. 
Van  Horn  v.  Kermit,  686. 
Van  Mater  v.  E]y,  312. 
Van  Riper  v.  Baldwin.  242. 
Van  Santvoord  v.  St.  John,  530. 
Vaas  V.  Riddick,  558. 
Verner  v.  Sweitzer,  410,  421,  423. 
Vernor  v.  Bethell,  252. 
Vickers  v.  Battershail  et  al.,  281. 
Vicksburg  v.  Ragsdale,  495,  714. 
Vigo  Agrl.  Society  v.  Brurnfiel,  97. 
Vincent  v.  Cornell,  133. 
Vinton  v.  Baldwin,  558. 
Vinton  v.  Middlesex  Ry.  Co.,  613. 
Virginia  Cent.  Ry.  Co.  v.  Sawyer,  023. 
Voight  V.  Railway  Co.,  660. 
WaV)ash,  etc.  Ry.  Co.  v.  Brown.  511. 
Wabash,  etc.  Ry.  Co.  v.  Harris,  530. 
Wabash,  etc.  Ry.  Co.  v.  Jaggerman, 

530. 


Wabash,  etc.  Ry.  Co.  v.  Peyton,  509. 

Wade  V.  Butcher,  etc.  Co.,  426. 

Wagner  v.  Railway  Co.,  602. 

Waite  V.  Gilbert,  714. 

Walcott  V.  Keith,  74,  238. 

Wald  V.  Railway  Co.,  469,  471,  649, 

689. 
Walden  v.  Finch,  204. 
Walker  v.  Baxter,  312. 
Walker  v.  Detroit  Transit  Ry.  Co., 

252. 
Walker  v.  Jackson,  416. 
Walker  v.  Midland  Ry.  Co.,  369. 
Walker  v.  Sharpe,  338. 
Walker  v.  Vicksburg  Ry.  Co.,  656. 
Walker  v.  Walker,  252. 
Wallace  v.  Finnagan,  297. 
Walling  V.  Potter,  334. 
Walsh  V.  Blakely,  590. 
Walsh  V.  Porterfield,  356,  359,  363. 
Walter  v.  Ross,  590. 
Wanzer  v.  Carey,  271. 
Ward  V.  Elkins,  709. 
Ward  V.  Railway  Co.,  513. 
Ward's  Cent.  etc.  Co.  v.  Elkins,  456. 
Ware  v.  Gay,  721. 
Warfield  v.  Railway  Co.,  644. 
Waring  v.  Indemnity  Ins.  Co.,  541. 
Warner  v.  Railway  Co.,  605,  679. 
Warner  v.  Fourth  Nat.  Bank,  243. 
Warren  v.  Railway  Co.,  596,  624. 
Wasliington,  etc.  Ry.  Co.  v.  Hickey, 

657. 
Watson  V.  Cross,  343,  375. 
Watson  V.  Hawkins,  271. 
Watson  V.  Louisville.etc.  Ry.  Co.,  633. 
Watson  V.  Railway  Co.,  439,  656. 
Watson  V.  Watson,  707. 
Waters  v.  Monarch  Assurance  Co., 

177. 
Waters  v.  Simpson,  233. 
Watts  V.  B.  &  O.  Canal  Co.,  427. 
Watts  V.  Railway  Co.,  182. 
Way  V.  Chicago,  etc.  Ry.  Co.,  604,640. 
Weaver  v.  Barden,  244. 
Weaver  v.  Poyer,  189. 
Webb  V.  Rice,  252. 
Weber  v.  Railway  Co.,  647,  655. 
Webster  v.  Railway  Co.,  601. 
Weed  V.  Barney,  570. 


Ivi 


TABLE    OF    CASES. 


References  are  to  sections. 


Weed  V.  Railroad  Co.,  693. 

Weeks  v.  Goode,  559. 

Weeks  v.  McNulty,  370. 

Weliinann  v.  Raihvay  Co.,  513. 

Weiland  v.  Kregnick,  24. 

Wei  land  v.  Sun  wall,  24. 

Welch  V.  Boston,  etc.  Ry.  Co.,  575. 

Welch  V.  Railway  Co.,  509,  599. 

Welch  V.  Ware.  706. 

Wells  V.  Oregon  Ry.  Co.,  562. 

Wells  V.  Railway  Co.,  509,  561,  664. 

Wells  V.  Steam  Navigation  Co.,  349. 

Wells  V.  Thomas,  544. 

Wells  V.  Thornton,  63. 

Wells  V.  Wells,  307. 

Went  worth  v.  Day,  71. 

Wentworth  v.  McDuffie,  80. 

Wescott  V.  Fargo,  509. 

Wessenger  v.  Taylor,  354. 

West  V.  Bank  of  Rutland,  312. 

West  V.  Grary,  273. 

Westchester  v.  Miles.  612,  613. 

Westchester,  etc.  Ry.  Co.  v.  McEIwee, 
574. 

West  Chicago,  etc.  Ry.  Co.  v.  McNul- 
ty, 631. 

Western,  etc.  Ry.  Co.  v.  Exposition 
Cotton  Mills,  510. 

Western  Ry.  Co.  v.  Cotton  Mills,  423. 

Vt'estern  Transp.  Co.  v.  Hoyt,  544. 

Western  Transp.  Co.  v.  Newhall,  482, 

Western  Union  Ry.  Co.  v.  Wagner, 
179. 

Wheeler  v.  Newbould,  302,  303. 

Wheeler  v.  Railway  Co.,  609. 

Wheeler,  etc.  Ry.  Co.  v.  Coots,  590. 

Whelen's  Ex'r  v.  Kinsley's  Adm'r, 
280. 

Whicher  v.  Railway  Co.,  641. 

Whipple  V.  Thayer,  254. 

Whitaker  v.  Clark,  360. 

Whitaker  v.  Sumner,  176,  240,  277, 
286,  287,  296. 

Whitney  v.  Peay.  285. 

Whitney  v.  Railway  Co.,  641. 

Whitney  v.  Tibbets,  240. 

White  V.  Bascom,  399. 

White  V.  Madison,  178. 

White  V.  Steam-tug  Mary  Ann,  414. 

White  V.  Webb,  540. 


White  v.  Winnisimmet  Co..  416. 
White  Mts.  Ry.  Co.  v.  Bay  State  Iron 

Co.,  286,  326. 
White's  Bank  v.  Myles.  233. 
Whitfield  V.  La  Lispencer,  390. 
WJiitehead  v.  Railway  Co..  602. 
Whitnell  v.  Brigham,  297,  313. 
Wightman  v.  Chicago,  etc.  Ry.  Co., 

634. 
Wilcox  V.  Fairhaven  Bank,  286. 
Wilder  v.  Railway  Co.,  454. 
Wilkes  et  al.  v.  Ferris,  278. 
Wilkins  v.  Earle,  360. 
Wilkinson  v.  Jeffers,  317. 
Willard  v.  Bridge,  179. 
Willet  V.  Rich,  202. 
Willey  V.  Allegheny  City,  204 
Williams  v.  Allsup,  162. 
Williams  r.  City.  724. 
Williams  v.  Gillespie,  238. 
Williams  v.  Little,  243. 
Williams  v.  Moore,  362. 
Willis  V.  Railway  Co.,  509. 
Willis  V.  Traction  Co.,  724. 
Willoughby  v.  Horridge,  416. 
Wilmington,  etc.  Ry.  Co.  v.  Kitchin, 

558. 
Wilsey  v.  Railway  Co.,  637. 
Wilson  V.  Britt,  41. 
Wilson  V.  Gayson,  71. 
Wilson  V.  Hal  pin,  392. 
Wilson  V.  Hamilton,  497. 
Wilson  V.  Jones,  177. 
AVilson  V.  Little,  224,  246. 
Wilson  V.  Martin,  161. 
Wilson  V.  Missouri  Pac.  Ry.  Co.,  504. 
Wilson  V.  Railway  Co.,  430,  431,  673, 

721. 
Wing  V.  Railway  Co.,  457. 
Wing  V.  Sleeping  Car  Co.,  641. 
Winslow  V.  Railway  Co.,  563,  689. 
Winter  v.  Coit,  559. 
Wintermute  v.  Clark,  332,  334. 
Wijithrop  Savings  Bank  v.  Jackson, 

292,  300. 
Wise  V.  Railway  Co.,  632. 
Witbeck  v.  Holland,  565,  574 
Wit  beck  v.  Schuyler,  43t. 
Witham  v.  Lee.  201. 
Witzler  v.  Collins,  439,  463. 


TABLE    OF    CASES. 


Ivii 


References  are  to  sections. 


Wockey  v.  Smith,  24. 
Wolf  V.  American  Exp.  Co.,  471. 
Wood  V.  Mathews,  318. 
Wood  V.  Railway  Co.,  Gil,  615. 
Woodman  v.  Hubbard,  127. 
Woodman  v.  Nottingham,  58. 
Woodruff  V.  Painter.  121. 
Woodruff  Sleeping-Car  Co.  v.  Delhi, 

333,  641. 
Woo  sey  v.  Railway  Co.,  602, 
Wooster  v.  Tarr,  545. 
Worcester  Co.  Bank  v.  Dorchester  & 

Milton  Bank.  244. 
Worcester  Nat.  Bank  v.  Cheeney,  243. 
Worthington  v.  Tormey,  322. 
Worton  V.  Railway  Co.,  645. 
Wright  V.  Bates,  252. 
Wright  V.  Caldwell,  432. 
Wright  V.  Sherman,  163, 165. 


Wycoff  V.  Queen's  County  Ferry  Co., 

416. 
Wycoff  V.  Southern  H.  Co.,  379,  38a 
Wynne  v.  Railway  Co.,  724 
Yearsley  v.  Gray,  163. 
Yeatman  v.  Savings  Inst.,  285. 
Yenni  v.  McNames.  176. 
Yeonians  v.  Navigation  Co.,  597. 
York  V.  Grindstone,  338. 
York  Co.  V.  Illinois  Cent.  Ry.  Co..  513, 

522,  555. 
York  Co.  V.  Railway  Co.,  435,  518. 
Yorke  v.  Grenaugh,  555. 
Young  V.  Kimball,  163,  375,  539. 
Young  V.  Railway  Co.,  437. 
Zimpleman  v.  Veeder,  318. 
Zinn  V.  Steamship  Co.,  570,  574. 
Zone  V.  Hannah,  177. 
Zouch  V.  Railway  Co.,  513. 


PAKT  FIRST 


ORDINARY  BAILMENTS 


CHAPTEE  I. 


THE  RELATION. 


§  1.  Of  the  history  and  origin. 
3.  Definition. 

3.  Judge  Story's  definition 

and  criticism. 

4.  Chancellor     Kent's    definition 

and  criticism. 

5.  Judge  Story  sustained. 

6.  Purpose  of  the  bailment  may  ne- 

cessitate a  change  in  condi- 
tion. 

7.  A  further  exception  as  to 

delivery. 

8.  The  Roman  mutuum. 

9.  Grain  stored  in  elevators. 

10.  Flouring-mills. 

11.  The  parties  to  a  bailment. 

12.  Wlio  may  be  bailor  or  bailee. 
18.  Competency  of  parties. 

14.  These  disabilities  a  shield  but 
not  a  sword. 


15. 

16. 

17. 

18. 

19. 
20. 
21. 

22. 


23. 
24. 


An  agent  may  create  the  rela- 
tion. 
CoriDorations. 
Some  very  common  examples 

of  bailments. 
The  kind  of  property  that  may 

be  the  subject  of  bailment. 
Delivery  and  acceptance. 
Title  of  the  bailor. 
Bailor  may   sell   or   incuinber 

property  —  Title  of  bailee. 
Bailor     must    exercise     good 

faith  —  Must      not      expose 

bailee  to  danger. 
Bailment  or  sale. 
Commingling  of  grain  on 

storage. 
A  bailment,  a  sale,  or  a  gift  — 

How  determined. 


§  1.  Of  the  history  and  origin. —  Law  is  a  development. 
From  the  dawn  of  civilization  it  has  been  recognized,  its  prin- 
ciples discussed,  defended  and  applied.  From  the  earliest  rec- 
ognition of  individual  property  rights  the  law  of  bailments 
commenced  its  development  and  has  ever  since  occupied  an  im- 
portant place  in  the  municipal  law.  The  Eomans  wrote  upon 
it,  and  gave  to  us  an  important  and  clear  analysis  of  its  princi- 
ples which  has  been  adopted  by  every  author  and  recognized 
b}'  every  court.  The  common  law  of  England,  from  its  earliest 
history,  from  necessity  gave  to  the  \a\v  of  bailments  an  im- 
portant place,  for  it  deals  with  almost  every  branch  of  busi- 

1 


§<   2,  3.]  ORDINAKV    BAILMENTS.  [PAET   I. 

ness  where  personal  property  is  involved.  Coke  and  Bracton 
and  the  early  writers  of  the  English  law  gave  to  the  subject 
prominence,  but  it  was  never  fully  applied  in  an  adjudicated 
case  until  in  the  opinion  of  Chief  Justice  Holt  in  the  case  of 
Coggs  V.  Bernard,^  afterwards  Sir  William  Jones,  in  an.  essay 
upon  the  subject  discussed  its  principles,  and  Sir  William  Black- 
stone  wrote  of  it  in  his  commentaries.^ 

In  our  own  country  Judge  Story  was  the  first  to  give  to  the 
profession  and  the  public  a  logical  and  practical  discussion  of 
this  subject.  To  him,  it  may  be  said,  belongs  the  credit  of 
being  the  pioneer  in  the  development  of  this  important  sub- 
ject, and  among  the  first  to  give  to  the  world  a  reliable  expo- 
sition of  the  principles  governing  it. 

§  2.  Definition. —  The  word  bailment  is  no  doubt  derived 
from  the  old  Norman  word  "  bailler,"  which  meant  to  deliver, 
but  it  has  a  very  much  broader  significance,  as  we  shall  see. 
As  to  a  definition  of  bailment  the  writers  have  very  much  dif- 
fered, and  have  criticised  and  discussed  the  definitions  given 
somewhat  freely ;  and  it  is  in  these  criticisms  that  we  are,  per- 
haps, able  to  obtain  the  best  exposition  and  meaning  of  this 
word  as  it  is  now  applied  and  understood  in  the  law. 

Blackstone  defines  a  bailment  to  be  "a  delivery  of  goods  in 
trust  upon  a  contract  express  or  implied  on  the  part  of  the 
bailee."  ^  And  again,  "a  delivery  of  goods  to  another  person 
for  a  particular  use."* 

Sir  William  Jones  gives  us  a  somewhat  different  definition, 
as  follows:  "A  delivery  of  goods  in  trust  on  a  contract  ex- 
pressed or  implied,  that  the  trust  shall  be  duh^  executed  and 
the  goods  redelivered  as  soon  as  the  time  or  use  for  which  they 
are  bailed  shall  have  elapsed  or  be  performed."^ 

§  3.  Judge  Story's  definition  and  criticism. —  Judge 

Story  defines  a  bailment  to  be  "a  delivery  of  a  thing  in  trust 
for  some  special  object  or  purpose,  and  upon  a  contract,  ex- 
pressed or  implied,  to  conform  to  the  objects  or  purposes  of  the 
trust."  And  he  proceeds  to  criticise  the  definitions  already 
given  for  the  reason  that  they  state  or  imply  that  there  must 
be  a  redelivery  of  the  bailed  property  to  the  bailor  when  the 

1 2  Ld.  Raym.  909.  4  o  Blk.  Comm.  375. 

•^  2  Blk.  Comra.  375.  5  Jones,  Bailm.  1. 

3  2  Blk.  Comm.  452. 


CIl.   I.]  THE    KKLA.TION.  [§§    4,   5. 

purpose  of  the  bailment  is  accomplished,  and  urges  that  if  this 
be  the  inflexible  rule  and  a  requisite,  then  a  consignment  of 
goods  to  a  factor  is  not  a  bailment.  A  factor,  it  will  be  remem- 
bered, is  one  whose  business  is  to  receive  and  sell  goods  for  a 
commission,  hence  it  would  follow  that  no  redelivery  to  con- 
signor is  contemplated,  and  if  the  object  of  the  consignment 
is  carried  out  the  goods  cannot  be  redelivered. 

Judge  Story's  contention  is  that  a  factor  is  a  bailee;  that  a 
consignment  of  goods  to  a  factor  is  a  bailment  and  subject  to 
the  law  of  bailments.  Story's  criticism  of  Blackstone's  defini- 
tions is  as  follows:  "  It  may  perhaps  be  doubted  whether  (al- 
though generally  true)  a  faithful  execution  (if  by  faithful  be 
meant  a  conscientious  diligence  or  faithfulness  adequate  to  a 
due  execution)  or  a  particular  use  (if  by  use  ba  meant  an  act- 
ual right  of  user  by  the  bailee)  constitutes  an  essential  or  proper 
ingredient  in  all  cases  of  bailment."^ 

§4.  Chancellor  Kent's  definition  and  criticism. —  Chan- 
cellor Kent  defines  a  bailment  to  be  "  a  delivery  of  goods  in 
trust  upon  a  contract  expressed  or  implied  that  the  trust  shall 
be  duly  executed  and  the  goods  restored  by  the  bailee  as  soon 
as  the  purpose  of  the  bailment  shall  be  answered,"  and  takes 
occasion  to  criticise  Judge  Story's  definition  and  criticism, 
and  contends  that  a  factor  is  not  a  bailee,  and  that  to  apply 
the  word  "  bailment "  to  cases  in  which  no  delivery  or  redelivery 
to  the  owner  or  his  agent  is  contemplated,  "is  extending  the 
definition  of  the  term  beyond  the  ordinary  acceptation  of  it 
in  the  English  law."  ^ 

§5.  Judge  Story  sustained. —  After  a  half  century 

and  more  of  discussion  by  eminent  authorities  and  jurists, 
it  may  be  said  that  the  great  weight  of  authority  in  this 
country  is  with  the  contention  of  Judge  Story,  and  that  the 
modern  cases  unanimously  hold  that  a  factor  is  a  bailee. 
But  while  this  is  true,  it  must  be  borne  in  mind  that  gener- 
ally, and  in  all  cases  of  bailment  except  a  few  exceptional  ones, 
the  law  contemplates  a  redelivery  to  the  bailor  of  the  specific 
property  when  the  object  of  the  bailment  has  been  accom- 
plished, or  the  bailed  property  in  its  changed  condition,  if  a 

iStoi-yon  Bail m.,  sec.  3.  ^3  Kent's  Comm.  40.     See  note  1, 

sec.  2,  p.  3,  Story  on  Bailm. 
3 


§§  0-8.]  ORDINARY    BAILMENTS.  [PAET  I. 

change  in  its  condition  is  made  necessary  in  order  to  carry  out 
the  bailment. 

§  6.  Purpose  of  the  bailment  may  necessitate  a  change  in 
condition. —  It  often  happens  that  the  ver}^  purpose  of  the  bail- 
ment indicates  that  the  property  is  to  be  changed  and  is  not 
to  be  redelivered  in  its  original  condition;  as,  for  example, 
where  wheat  is  delivered  to  the  miller  to  be  manufactured  into 
flour;  or  cloth  is  furnished  to  the  tailor  to  be  made  into  clothing; 
or  material  to  the  wagon-maker  with  which  he  is  to  construct  a 
wagon;  in  such  like  cases  it  goes  without  saying  that  the  man- 
ufactured article  is  to  be  delivered  to  the  bailor  rather  than 
the  specific  property  bailed. 

§  ?.  A  further  exception  as  to  delivery. —  Another 

exception  to  the  general  rule  that  the  subject  of  the  bail- 
ment must  be  finally  returned  to  the  bailor  is  found  in  those 
cases  where,  from  the  very  nature  of  the  business  and  the  usage 
of  trade,  it  is  understood  that  property  of  like  specie  and  value 
may  be  returned  when  the  object  of  the  bailment  has  been  ac- 
complished; as,  for  example,  where  money  is  deposited  in  a 
bank,  or  is  loaned  to  a  borrower,  it  is  not  expected  in  such  cases 
that  the  very  same  money  —  the  specific  bank  notes  —  will  be 
returned  to  the  depositor  or  the  loaner,  but  on  the  other  hand 
it  is  expected  that  the  money  will  be  used  and  that  other  money 
of  the  same  value  and  amount  will  be  delivered  to  the  depositor 
or  the  loaner  in  payment.  Usage,  custom  and  public  policy 
often  fix  and  determine  the  law  in  such  cases. 

§  8,  The  Roman  mutuum. —  These  exceptions  to  the  general 
rule  above  noticed  correspond  very  nearly  to  the  "  Roman 
mutuum,"  which,  at  common  law,  was  considered  to  be  a  sale 
of  the  property. 

An  exposition  of  this  is  given  bv  Gains  as  follows:  "  This," 
he  says,  "  chiefly  relates  to  things  which  are  estimated  by 
weight,  number  or  measure,  such  as  money,  oil,  wine,  corn, 
bronze,  silver  and  gold.  We  transfer  our  property  in  these  on 
condition  that  the  receiver  shall  transfer  back  to  us  at  a  future 
time  not  the  same  things  but  other  things  of  the  same  nature, 
wherefore  this  contract  is  called  mutuum  because  thereby 
meuia  becomes  tuemy  ^  ' 

1  Story  on  Bailm.  47. 
4 


OH.  I.]  THE    RELATION.  [^§    9-12. 

§  9.  Grain  stored  in  elevators. —  Another  exception 

to  the  general  rule  requiring  the  subject  of  the  bailment  to  be 
returned  to  the  bailor  when  the  object  of  the  bailment  is  ac- 
complished is  where  grain  is  stored  in  elevators.  This  busi- 
ness, which  has  grown  to  immense  proportions  in  this  country, 
has  of  necessity  wrought  an  exception  to  the  general  rule. 
Thousands  of  bushels  of  grain  are  stored  for  safe-keeping  for 
hundreds  of  different  owners;  it  would  be  impossible,  at  least 
impracticable,  to  keep  each  depositor's  grain  separate  from  the 
others  so  as  to  return  the  identical  deposit,  and  it  is  not  ex- 
pected; the  only  separation  of  the  grain  is  by  keeping  the 
same  kind  and  quality  in  bins  by  itself,  so  the  owner  may  have 
returned  to  him  grain  of  the  same  kind  and  quality  as  that 
he  deposited. 

§  10.  Floiiring-mills. —  Another  exception  which  is 

recognized  is  in  the  case  of  storing  ffram  with  the  owner  of 
flouring  or  grist-mills,  where  the  grain  is  kept  separate  only 
by  putting  like  kind  and  quality  together,  as  in  the  case  of  the 
elevator;  the  understanding  being  that  the  owners  shall  not 
receive  their  identical  grain  from  the  mill  proprietor,  but  grain 
of  like  quality  and  quantity,  or  flour,  or  the  mill  product  of 
such  grain,  as  the  owner  may  desire  from  time  to  time. 

Some  important  questions  have  arisen  in  the  courts  as  to  the 
status  of  the  parties  in  this  kind  of  bailments.  Are  they 
bailments  or  sales?  In  case  of  loss  who  is  the  owner?  who 
the  loser  ? 

§  11.  The  parties  to  a  bailment. —  The  parties  to  a  transac- 
tion called  or  defined  to  be  a  bailment  are  {a)  the  bailor,  and 
(b)  the  bailee,  {a)  The  bailor  is  the  party  or  person  who,  having 
the  property  in  his  possession,  "delivered  it  in  trust  for  some 
special  objector  purpose,  and  upon  a  contract  expressed  or  im- 
plied to  conform  to  the  object  or  purpose  of  the  trust.""  {I)  The 
bailee  is  the  party  or  person  who  accepts  the  property  and  the 
trust,  and  continues  in  the  possession  of  the  same  until  the  ob- 
jects or  purposes  of  the  trust  are  carried  out,  or  the  bailment 
is  terminated. 

§  12.  Who  may  be  bailor  or  bailee, —  This  answered,  would 
require  mention  to  bo  made  of  almost  every  person  and  kind 
of  officer,  or  person  connected  with  the  transaction  of  business 
pertaining   to   the   use   of  personal  property.     As  Professor 


§§  13,  14.]  ORDINARY    BAILMENTS.  [PART  1. 

Schouler  has  said:  "  Such  is  bailments !  A  division  of  the  law 
■whose  main  artery  ramifies  into  the  closest  transaction  of  our 
daily  life.  Trustees,  agents,  factors,  -warehousemen,  commis- 
sion merchants,  all  have  duties  and  responsibilities  in  the  hand- 
ling of  personal  property  founded  in  its  doctrines."^  And 
innumerable  examples  might  be  given;  for  the  possession  of  an- 
other's personal  property  by  any  right  or  privilege  short  of 
the  transfer  of  the  title  will  constitute  the  possessor  of  a  bailee, 
and  render  him  liable  as  such. 

§  13.  Competency  of  parties. —  As  to  competency  of  parties 
to  a  bailment,  it  ma}^  be  said,  generally,  that  any  person  who 
is  competent  to  make  a  contract  is  competent  to  become  a 
party  to  a  bailment.  Such  a  degree  of  competency,  however, 
cannot  always  be  required;  for  while  the  relation,  generally 
speaking,  is  one  of  contract,  there  are  cases,  as  we  shall' see, 
when  the  relation  is  created  without  intention  on  the  part  of 
the  bailor;  as  in  case  of  finding,  and  unintentionally  placing 
the  possession  of  one's  property  into  the  possession  and  control 
of  another;  and  so,  while  one  may  not  be  competent  on  ac- 
count of  infancy,  drunkenness,  lunacy,  or  anything  that  would 
render  one  totally  incompetent  to  enter  into  a  contract,  still 
that  one  might  deliver  his  property  for  custody,  or  any  law- 
ful purpose,  into  the  hands  of  another,  and  create  the  relation 
of  bailment,  and  render  the  bailee  liable  for  care,  custody  and 
final  redelivery  of  the  same,  the  relation  would  not  be  void  but 
voidable  on  the  part  of  the  bailor.  And  so  one  who  is  incom- 
petent to  be  a  party  to  a  contract  may  become  a  bailee,  and 
would  not  be  shielded  for  misconduct  on  the  plea  of  such  in- 
competency. 

§  14.  These  disabilities  a  shield  but  not  a  sword. —  While 
an  infant  or  married  woman  at  common  law  would  be  wholly 
incompetent  to  become  a  party  to  a  contract,  and  would  be 
able  to  avoid  a  contract  of  bailment  if  property  should  be  bailed 
by  them  or  received  as  bailee,  nevertheless,  if  property  comes 
into  the  possession  of  one  thus  incapacitated,  the  law  would 
require  of  them  proper  care  to  the  extent,  as  least,  that  they 
should  not  destroy,  injure  or  misappropriate  it.  In  case  of 
misappropriation  the  law  does  not  proceed  upon  the  contract, 

^  Scliouler  on  Bailm.  3. 
6 


on.  I.]  THE   RELATION.  [§§  15-17. 

but  holds  them  liable  as  for  a  conversion  of  the  property  in  an 
action  of  tort.  And  when  an  infant  hires  a  horse  and  carriage 
to  drive  to  a  certain  place,  and  without  authority  tortiously 
drives  beyond  that  place,  resulting  in  the  death  of  the  horse, 
he  would  be  held  to  have  converted  the  property.^ 

§  15.  An  agent  may  create  the  relation. —  Acting  within 
the  scope  of  his  authority,  an  agent  may  create  the  relation  for 
his  principal,  and  within  the  apparent  scope  of  his  authority 
can  no  doubt  bind  his  principal  as  to  third  parties,  even  though 
he  has  no  actual  authority.  It  has  been  held,  and  is  no  doubt 
the  law,  that  the  agent  may  render  himself  liable  if  he  know- 
ingly exceeds  his  authority  in  this  the  same  as  he  might  in 
other  matters.  The  doctrine  of  ratification  of  the  agent's  act 
applies  in  this  as  it  does  in  other  business  transactions.  Bailors 
and  bailees  may  act  and  be  bound  by  their  agents,  and  the  gen- 
eral doctrines  applicable  to  the  law  of  agency  apply  here  as 
in  other  cases.  Where  the  agent,  however,  acts  tortiously  and 
wholly  beyond  and  without  authority,  he  cannot  bind  his  prin- 
cipal, but  renders  himself  liable.^ 

§  16.  Corporations. —  A  corporation  acting  within  its  cor- 
porate authority  may  become  either  a  bailor  or  a  bailee.  Cor- 
porations, from  their  very  nature,  necessarily  must  act  through 
their  agents  or  officers,  and  where  the  agents  and  officers  act 
ultra  vires  they  become  personally  liable,  but  cannot  bind  the 
corporation.  If,  however,  the  property  is  received  by  the  cor- 
poration by  reason  of  the  unauthorized  acts  of  its  agents  or 
officers,  or  by  reason  of  acts  ultra  vires,  it  cannot  retain  the 
property,  but  is  bound  to  deliver  it  over  to  the  bailor.'' 

§  17.  Some  very  common  examples  of  bailments. —  A. 
leaves  his  overcoat  with  you  in  your  office  Avhile  he  goes  out 
into  the  city  to  transact  some  business.  A  mere  accommoda- 
tion on  your  part.  You  are  the  bailee  of  A.'s  overcoat,  A.  the 
bailor. 

A.,  a  guest  at  a  hotel,  leaves  his  overcoat  with  the  clerk  or 
porter,  and  receives  a  check  for  it,  according  to  the  usage  of 
the  hotel.  A.  is  the  bailor,  and  the  proprietor  of  the  hotel  is 
the  bailee. 

iTowne  v.  Wiley,  23  Vt.  351.  SDuncomb  v.  N.  Y.  etc.  R.  Co.,  84 

2  Foster  v.  Essex  Bank,  17  Mass.     N.  Y.  100. 
479. 

7 


§§  IS,  19.]  OKDINARY    BAILMENTS.  [PAET  I. 

A.  leaves  his  overcoat  with  his  tailor  to  be  repaired.  A.  is 
the  bailor,  and  the  tailor  is  the  bailee;  or,  A.  leaves  cloth 
with  the  tailor,  from  which  the  tailor  is  to  make  him  a  suit  of 
clothes. 

A.  loans  his  overcoat,  without  any  reward,  to  B.,  to  be  worn 
and  used  by  B. 

A.  deposits  money  with  his  banker. 

A.  leaves  a  box  of  valuable  papers  in  a  safety-deposit  com- 
pany's vault,  in  charge  of  the  company. 

A.  consigns  goods  to  be  carried  and  delivered  by  a  common 
carrier,  an  express  company  or  a  railroad  company;  and  so 
thousands  of  examples  might  be  given. 

§  18.  The  kind  of  property  that  may  be  the  subject  of  a 
bailment. —  Personal  property  only  can  be  the  subject  of  a 
bailment;  the  property,  however,  may  be  incorporated  person- 
alty, as  stocks,  bonds,  and  the  like,  as  well  as  corporeal  per- 
sonalty, but  real  estate  cannot  be  the  subject  of  a  bailment. 

If  A.  rents  a  house,  or  a  farm,  or  a  storehouse  of  B.,  which  is 
given  into  his  possession  under  their  contract  or  lease,  the  re- 
lation of  landlord  and  tenant  is  created,  not  that  of  bailor  and 
bailee.  If,  however.  A,  should  take  the  household  furniture  of 
B.  for  storage,  either  for  hire  or  without  compensation,  the 
relation  of  bailor  and  bailee  would  be  created.  The  usual  test 
is,  the  property  must  be  personal  property,  and  of  such  a  nature 
that  it  can  be  delivered  into  the  actual  manual  possession  of 
the  bailee  by  the  bailor,  and,  after  the  object  of  the  bailment 
has  been  accomplished,  redelivered  to  the  bailor. 

§  19.  Delivery  and  acceptance. —  The  property  the  subject 
of  the  bailment  must  come  to  the  possession  of  the  bailee,  and 
to  that  end  there  must  be  some  sort  of  delivery,  either  actual 
or  constructive.  The  very  essence  of  the  relation  is  possession, 
and  so  it  may  be  said,  as  a  general  rule,  that  there  must  be  an 
acceptance  of  the  property  on  the  part  of  the  bailee;  for  one 
cannot  be  made  a  bailee  against  his  will,  and  must  have  knowl- 
edge of  the  fact  that  he  is  in  possession  of  the  property. 

While  it  is  said  that  a  bailment  is  a  contract,  and  generally 
it  is  so  conceded  to  be,  it  is  not  alwaj'^s  so  created;  one  may 
come  to  the  possession  of  the  property  by  finding,  or  even  by 
stealing  it,  or  it  may  be  placed  in  his  possession  by  mistake 
and  not  be  found  by  him  until  some  time  after.     In  all  these 


CH.  I.]  THE    KELATION.  [§§    20,  21. 

cases  the  bailor  bad  no  intention  of  parting  Avitb  tbe  posses- 
sion; there  was  no  mutuality  or  meeting  of  minds  upon  that 
subject,  but  nevertheless  the  finder  or  the  thief  becomes  a 
bailee;  he  may  not  be  bound  to  continue  the  relation,  but  so 
long  as  he  retains  the  possession  he  must  care  for  the  property, 
and  for  that  care,  according  to  the  circumstances  governing  the 
case,  he  is  liable  to  the  owner  or  bailee.  An  example  used  by 
many  of  the  authors  on  this  subject  is  where  one,  by  mistake, 
puts  his  purchased  articles  into  another's  wagon  in  the  street, 
and  the  owner,  without  any  know^ledge  of  their  presence,  drives 
away  with  them.  So  long  as  he  is  ignorant  of  having  them 
in  his  possession  he  is  under  no  obligation  to  care  for  them ; 
he  may  lose  them  by  the  grossest  of  carelessness  upon  his  part, 
and  he  is  not  liable  because  he  is  not  in  any  sense  a  bailee;  but 
the  moment  he  discovers  the  parcels,  and  has  knowledge  of 
the  fact  that  he  has  them  in  his  possession,  from  that  moment 
he  becomes  a  bailee,  and  is  legally  bound  to  care  for  them, 
and  if  lost  under  certain  circumstances  would  be  liable  to  the 
owner. 

§20.  Title  of  the  bailor. —  Absolute  title  or  ownership  of 
the  property  by  the  bailor  is  not  essential.  The  bailment  re- 
lation is  founded  upon  a  possessory  right,  and  so  one  who  has 
a  special  property  merely  in  the  subject  of  the  bailment,  as  the 
right  to  the  possession  and  use  of  the  thing,  he  may  bail  the 
property.  The  finder  of  property  has  the  right  to  the  posses- 
sion of  it  against  all  the  world  except  the  principal  owner  of 
it,  and  so  may  be  the  bailor  of  the  property.  Even  a  thief 
may  make  a  bailment  of  the  stolen  property,  and,  if  the  owner 
does  not  interfere,  may  recover  it  from  the  bailee,  if  at  the 
termination  of  the  bailment  he  should  refuse  to  deliver  it  back 
to  him.  It  is  well  settled  that  a  bailee  cannot  dispute  his  bail- 
or's title;  having  received  the  property  bailed  from  the  bailor, 
he  cannot,  while  holding  it  as  a  bailee,  deliver  it  to  another 
person.  In  Bursley  v.  Hamilton  ^  it  w^as  held  that  an  owner 
of  property,  giving  a  receipt  for  it  to  an  officer  who  has  seized 
it  under  process,  could  not  set  up  title  in  himself,  when  sued  by 
the  officer,  without  first  restoring  the  property  to  the  officer. 

§21.  IJailor  may  sell  or  incuiiiber  property —  Title  of 
bailee.— The  bailee  has  a  title  only  commensurate  with  the 

1 15  Pick.  (Mass.)  40. 
9 


§§  22,  23,]  ORDINARY    BAILMENTS.  [PART  I. 

object  of  the  bailment;  aright  to  the  possession  and  use  of 
the  property,  fixed  and  co-extensive  with  the  contract  of  bail- 
ment; he  cannot  sell  it  or  in  any  way  incumber  the  property^ 
for  should  he  attempt  to  do  so  he  would  violate  the  very  es- 
sence and  right  to  continue  the  bailment.  But  the  bailor  may, 
subject  to  the  bailor's  rights  to  carry  out  the  bailment,  sell  all 
his  right,  title  and  interest  in  the  property  or  thing  bailed,  or 
he  may  mortgage  it,  or  in  any  way  incumber  it,  and,  upon  no- 
tice, the  bailee  would  be  bound  to  respect  the  rights  of  the 
vendee  or  mortgagee. 

§  22.  Bailor  must  exercise  good  faith  —  Must  not  expose 
bailee  to  danger. —  It  is  the  duty  of  the  bailor  to  exercise  good 
faith  toward  the  bailee  b}^  giving  him  notice  of  all  the  faults 
of  the  thing  bailed  that  might  result  in  exposing  the  bailee  to 
danger,  and  if  he  fails  to  do  so,  and  by  reason  of  it  the  bailee 
is  injured,  the  bailor  will  be  liable.  As,  for  example,  if  the 
bailor  should  loan  a  vicious  horse,  it  is  his  duty  to  notify  the 
bailee  of  the  fact,  and  if  by  reason  of  the  bailor's  failing  to 
give  such  notice  the  bailee  should  be  injured,  he  may  recover 
damages  of  the  bailor. 

§  23.  Bailment  or  sale. —  Both  a  bailment  and  a  sale  are  the 
result  of  contract  between  the  parties;  to  accomplish  either  the 
minds  of  the  parties  must  meet.  It  would  therefore  follow  that^ 
to  determine  whether  the  personal  transaction  is  a  bailment  or  a 
sale,  it  is  necessary  to  discover  the  intention  of  the  parties,  for 
their  intention  must  govern. 

There  is  no  fixed  rule  or  settled  form  of  words  by  which  we 
can  always  determine  whether  the  transaction  is  a  bailment  or 
a  sale,  and  it  is  often  difficult  to  conclude  from  the  facts  what 
was  really  intended  by  the  parties.  If  the  identical  property 
is  to  be  returned,  or  the  same  property  in  a  changed  condition, 
or  the  natural  product  of  the  same  property,  the  transaction  is 
without  doubt  not  a  sale.  "  One  established  test,"  says  Benjamin, 
"  between  a  bailment  and  a  sale  is  that,  when  the  identical 
thing  delivered  is  to  be  returned,  though  perhaps  in  an  altered 
.form,  it  is  a  bailment  and  the  title  is  not  changed;  but  where 
there  is  no  obligation  to  return  the  specific  article  received, 
and  the  receiver  is  at  liberty  to  return  another  thing,  eitlierin 
the  same  or  some  other  form,  or  else  to  pay  money,  he  becomes 
a  purchaser;  the  title  is  changed;  the  transaction  is  a  sale, and 

10 


CH.  I,]  THE    RELATION.  [§    24. 

the  property  is  at  the  receiver's  risk,  therefore  cannot  be  the 
true  construction  of  the  contract,  .  .  .  the  article  deliv- 
ered is  to  be  returned  either  just  as  received  or  made  into  other 
goods;     .     .     .     the  transaction  is  a  bailment."  ^ 

And  so  where  castings  were  delivered  to  be  manufactured 
into  shears,  the  blades  to  be  furnished  by  the  bailee,  it  was  held 
to  be  a  bailment.^ 

This  test,  however,  excludes  the  case  of  a  factor  who  with- 
out question  may  become  a  bailee  of  property.  It  would  also 
exclude  all  that  character  of  bailments  known  as  "consign- 
ments for  sale,"  because  in  such  cases  there  is  no  obligation  to 
return  the  specific  article,  but  only  the  value  thereof  in  money 
after  a  sale  is  made  by  a  factor  or  consignee;  or,  in  case  no 
sale  is  made,  then  to  restore  the  specific  article.*  While  goods 
are  so  held  upon  consignment,  there  can  be  no  question  but 
that  the  bailment  made  exists,  and  the  parties  would  be  liable 
as  bailor  and  bailee.  This,  then,  may  be  said  to  be  an  excep- 
tion to  the  test  above  given. 

§  24.  Commingling  of  grain  on  storage. —  These  con- 
tracts more  often  arise  in  the  business  of  warehousemen  or  ele- 
vator companies,  or  where  grain  is  stored  with  mill  owners, 
where  the  grain  delivered  is  mingled  with  other  grain  of  the 
same  grade  and  kind  in  one  common  mass  and  not  kept  sepa- 
rate for  each  owner.  In  such  case  it  is  held,  if  the  commingled 
mass  has  been  delivered  on  simple  storage,  each  party  is  en- 
titled on  demand  to  receive  his  share;  if  for  conversion  into 
flour,  each  is  entitled  to  his  proper  share  of  the  product.* 

And  where  a  milling  firm  received  a  quantity  of  wheat  and 
gave  receipts  therefor,  stating  that  it  had  been  received  at  the 
owner's  risk  from  farmers  and  at  a  certain  rate  when  sold  to 
them,  but  no  charge  was  made  for  storage,  and  the  millers  used 
the  wheat  in  their  business,  and  it  became  a  part  of  their  cur- 
rent consumable  stock  and  its  identity  was  lost,  it  was  held 

1  Benj.  on  Sales  (6th  Am.  ed.),  5.  not    convert    the    transaction    into 

2  Mack  V.  Snell,  140  N.  Y.  193.  a  sale,  and  the  bailee  of  the  whole 

3  Norwegian  Plow  Co.  v.  Clark,  70  has  no  greater  control  of  the  mass 
N.  W,  808.  than  if  the  share  of  each  wei'e  kept 

*  Where  grain  is  delivered  on  a  con-  separate.  Chase  v.  Washburn,  1  Ohio 
tract  of  bailment,  the  mere  fact  tliat  St.  344,  50  Am.  Dec.  G;J0;  Andrews  v. 
it  was  mixed  with  otiier  grain  with  Richmond,  34  Ilun  (N.  Y.),  20;  James 
the    knowledge   of  tiie    bailor  does    v.  Plank,  48  Ohio  St.  255. 

11 


§  24.]  ORDINARY    BAILMENTS.  [PART    I. 

that  ill  the  absence  of  legal  usage,  or  a  course  of  dealing  be- 
tween the  parties  to  the  contract,  the  receipt  should  be  con- 
strued as  evidence  of  a  bailment  and  not  of  a  sale.^  But  where 
o-rain  is  delivered  to  a  warehouseman  who  is  also  a  miller, 
with  the  understanding  that  it  is  to  be  mixed  with  the  miller's 
own  wheat  and  ground  into  flour  in  the  usual  course  of  his 
business,  and  the  flour  made  therefrom  is  to  be  his  own  prop- 
erty, such  a  transaction  is  a  sale.-  Where  the  warehouseman 
was  authorized  to  sell  only  his  own  portion  of  the  common 
mass,  and  was  required  to  keep  at  all  times  an  amount  on  hand 
to  satisfy  all  depositors,  it  was  held  that  the  transaction  was  a 
bailment.^ 

Plaintiffs  delivered  grain  to  defendant  at  his  elevator  and 
received  from  him  a  memorandum  that  it  was  "  bought  at 
owner's  risk  as  to  fire,"  but  specifying  no  price,  the  grain  being 
placed  by  himself  in  a  separate  bin.  Subsequently  the  defend- 
ant made  an  offer  for  it  which  the  plaintiffs  refused,  and  after- 
wards the  elevator  and  grain  were  destroyed  by  fire  without 
defendant's  fault.  It  was  the  custom  to  receive  grain  in  this 
manner,  and  afterwards  buy  or  return  it.  It  was  held  that  the 
defendant  was  not  liable  for  the  loss.* 

And  where  a  contract  by  which  several  farmers  Avere  to  de- 
liver to  a  designated  firm,  at  a  factory  previously  owned  and 
controlled  by  the  farmers,  specified  vegetable  products  at  des- 
ignated prices,  which  the  firm  agreed  to  take  and  pay  for  at 
certain  times,  and  if  necessary  make  additions  to  the  factory 
at  a  cost  not  to  exceed  a  specified  amount,  to  be  deducted  from 
the  net  profits,  each  farmer  to  receive  a  specified  per  cent,  pro 
rata  according  to  the  amount  of  produce  delivered  by  him  at 
the  factory  in  addition  to  the  price  agreed  upon,  it  was  held 
that  the  contract  was  one  of  bailment  and  not  of  sale.^ 

And  a  delivery  of  wheat  to  an  elevator  company  for  which 
the  owner,  after  stating  that  he  did  not  wish  to  sell,  took  a  re- 

1  Bretz  V.  Diehl,  117  Pa.  St.  589,  2  St.  255  (distinguishing  State  v.  Wash- 
Am.  St.  Rep.  706.  burn,  1  Ohio  St.  244). 

2Ledyard  v.  Hibbard,  48  Mich.  421,  ••Irons  v.  Kentner,  51  Iowa.  88,  33 

42  Am.  Rep.  474.  Am.  Rep.  117:  State  v.  Stockman,  30 

3  Andrews  v.   Richmond,  34  Hun  Oreg.  33,  46  Pac.  851. 

(N.  Y.),  20;  James  v.  Plank,  48  Ohio  ssatles  v.   Hallock,  44  N.  Y.  Sup. 

543. 

13 


CH.  I.]  THE    KELATION.  [§    25. 

ceipt  stating  the  number  of  bushels  delivered,  was  held  to  con- 
stitute a  bailment  and  not  a  sale  of  the  wheat,  notwithstanding 
a  custom  in  the  neighborhood  to  regard  such  transactions  as 
sales,  unless  the  custom  was  known  to  the  owner  of  the  wheat 
and  he  understood  that  he  was  dealing  in  accordance  there- 
with.i 

And  where  plaintiffs  delivered  grain  to  an  elevator  com- 
pany under  an  alleged  oral  agreement  that  it  was  to  remain 
in  the  elevator  until  the  plaintiffs  were  ready  to  sell  it,  and 
that  the  elevator  company  was  then  to  have  the  grain  if  it 
would  pay  as  much  as  was  paid  by  others,  and  in  case  it  did 
not  buy  it  was  to  have  one  cent  per  bushel  for  weighing  the 
grain  in  and  out,  plaintiffs  knowing  that  the  grain  so  delivered 
was  mixed  in  a  mass  with  other  grain,  and  that  the  company 
was  accustomed  to  ship  from  the  mass  whenever  the  prices 
suited  them,  and  the  plaintiffs  could  not  have  understood  that 
the  identical  grain  was  in  any  case  to  be  returned  to  them,  it 
was  held  that  the  true  meaning  of  the  contract  was  that  the 
elevator  company  was  to  have  the  option  to  pay  the  best  market 
price  for  the  grain  whenever  plaintiffs  desired  to  close  the 
transaction,  or  return  to  them  an  equal  quantitv  of  similar 
grain,  and  that  it  was  a  contract  of  sale  and  not  of  bailment.- 

§  25.  A  bailment^  a  sale,  or  a  gift  —  How  deteniiiiied. — 
From  what  has  been  said  and  from  the  examples  noted,  it  may 
be  determined  that  the  bailee  is  only  entitled  to  the  possession 
of  the  property  which  is  finally  to  be  delivered  on  contract  to 
the  bailor;  that  the  title  to  the  property  does  not  pass  to  the 
bailee  but  remains  in  the  bailor,  while  in  a  sale  there  is  a  trans- 
fer of  the  absolute  title  in  the  property  or  thing  for  a  price  in 
money.  And  so  in  case  of  a  gift  the  title  of  the  property  passes 
upon  delivery,  while  in  bailment  the  title  of  the  property  re- 
mains in  the  bailor,  and  the  possession,  or  the  right  to  posses- 
sion, only,  passes  to  the  bailee. 

1  Weiland  v.  Kregnick,  63  Minn.  v.  Leyda,  46  Ohio  St.  244,  20  N.  E. 

314;  Weiland   v.   Sunwall  et  at,  63  472;  Pontiac  Nat.  Bank  v.  Lungan, 

Minn.  320,  65  N.  W.  628;  Barnes  v.  28  111.  App.  401;  McGrew  v.  Thayer, 

McCrea,  75  Iowa,  267,  9  Am.  St.  Rep.  —  Ind.  —  (1900),  57  N.  E.  262;  Baker 

473,  39  N.  W.  392.  v.   Born, Ind. ,  46  N.  E.  930; 

-'Barnes  Bros.  v.  McCrea  &  Co.,  75  Wockey  v.  Smith,  181  111.  564;  State 

Iowa,  267 ;  and  bee  cases  cited ;  O'Dell  v.  Cowdrey,  79  Minn.  94,  48  L.  R.  A.  92. 

13 


CHAPTER  11. 

OF  THE  CLASSIFICATION  OF  BAILMENTS. 


§  26.  Roman  classification  adopted 
by  authors. 
27.  Modern  classification  upon  the 
theory  of  recompense  or  no 
recompense. 


28.  Modern  classification  includes 

earlier  classification. 

29.  Ordinary  bailments. 

30.  Exceptional  bailments. 

31.  Chart  showing  classification  of 

bailments 


§  26.  Roman  classification  adopted  by  authors. —  To  Lord 
Holt,  Sir  William  Jones  and  Judge  Story  are  we  indebted  for 
that  thorough  classification  of  this  subject  that  has  been  recog- 
nized by  every  author  that  has  \A'ritten  upon  it.  They  followed, 
in  large  degree,  the  Roman  system,  and  adopted  the  Roman 
names  given  to  the  different  kinds  of  bailments,  which  have 
been  so  thoroughly  woven  into  our  laws  that  now  they  are 
recognized  as  a  part  of  it.  According  to  the  system  of  these 
great  authors,  the  divisions  of  the  law  of  bailment  as  stated 
and  defined  by  Stor}^  Schouler^  and  other  authors  are  as  fol- 
lows: 

I.  Depositum:     A  naked  bailment  of  personal  property  to 
be  kept  by  the  bailee  without  recompense  and  returned 
to  the  bailor  when  the  purpose  of  the  bailment  has 
been  accomplished. 
II.  Mandatuyn:     A  mandate,  or  the  bailment  of  personal 
property,  as  to  which  the  bailee  undertakes  without 
recompense  to  do  something. 
III.   Commodatum:     A  loan  for  use,  or  the  bailment  of  per- 
sonal property  to  be  borrowed  or  used  by  the  bailee 
without  reward;  but  in  our  law,  of  course,  to  be  re- 
stored in  specie. 
lY.  Pignus:     A  pledge  or  pawn,  or  the  bailment  of  personal 
property  to  a  creditor  as  security  for  some  debt  or 
engagement. 
Y.  Locatio  conductio:     A  hiring  which  is  always  for  some 
reward. 

1  Story  on  Bailm.,  sees.  4,  5,  6,  etc.;  Scihouler,  Bailm.,  sec.  14. 

14 


€H.   II.]  CLASSIFICATION    OF    BAILMENTS.  [§§  27-30. 

Judge  story  divides  the  locatio-  bailments  into  four  subdi- 
visions: 

I.  Locatio  rei:     Tlie  hiring  of  a  thing  for  use. 
II.  Locatio  oporis  faciendi:     The  hiring  of  work  and  labor 

upon  a  thing. 
III.  Locatio  cicstodice:    The  hiring  of  care  and  service  to  be 

performed  or  bestowed  on  the  thing  delivered. 
lY.  Locatio  ojjoris  niercium.  vehendarum:     The  hiring  of  the 
carriage  of  goods  from  one  place  to  another.^ 

§  27.  Modern  classification  upon  the  theory  of  recompense 

or  no  recompense, —  That  the  classifications  of  these  early  au- 
thors were  not  only  comprehensive,  but  have  been  of  inesti- 
mable value  to  the  development  of  the  law  of  bailments,  there 
can  be  no  doubt,  but  the  more  modern  theory  has  been  to 
classify  along  the  line  of  gratuitous  and  non-gratuitous  bail- 
ment. Is  the  bailment  for  the  sole  benefit  of  the  bailor,  for 
the  sole  benefit  of  the  bailee,  or  for  the  mutual  benefit  of  both 
parties  ? 

This  modern  classification,  however,  is  but  a  remodeling  of 
the  former  and  earlier  one,  and  is  used,  and  is  principally  im- 
portant, for  the  purpose  of  illustrating  in  a  concise  manner  the 
liability  and  duty  devolving  upon  the  parties  to  the  bailment. 

§  28.  Modern  classification  includes  earlier  classification. 

I.  A  bailment  for  the  sole  benefit  of  the  bailor  includes 
(a)  Depositum,  (b)  Mandatum. 

II.  A  bailment  for  the  sole  benefit  of  the  baiter  includes 
CommodMtum. 

III.  A  bailment  for  the  benefit  of  both  bailor  and  bailee  in- 
cludes (a)  Pignus,  (b)  Locatio  Conductio  with  all  of  the  subdi- 
visions made  by  Judge  Story. 

§  29.  Ordinary  bailments. —  The  bailments  thus  far  dis- 
cussed are  generally  called  ordinary  bailments.  There  is,  how- 
ever, another  general  subdivision  called  — 

§  30.  Exceptional  bailments. —  These  bailments  arc  compre- 
hended by  the  "Locatio"  bailments,  so  called,  their  liability 
resting  in  the  demands  of  public  policy.  They  are  {a)  post- 
masters, {li)  innkeepers,  and  (c)  common  carriers. 

1  Story  on  Bail  in.,  sec.  8. 


§31.] 


ORDINARY    BAILMENTS. 


[part  L 


31.  Chart  showing  classification  of  bailments. — 


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16 


CHAPTER  III. 


OF  THE  RIGHTS,  DUTIES  AND  LIABILITIES  GENERALLY  OF 
BAILOR  AND  BAILEE. 


32.  Object  of  chapter. 

33.  Gratuitous  and  non-gratuitous 

bailments. 

34.  Consideration. 

35.  Benefit  of  bailor,  or  bailee,  or 

both. 

36.  Negligence  or  diligence. 

37.  Chart  showing  duties  and  lia- 

bilities. 

38.  What  is  diligence  and  what  is 

negligence. 


39.  Definition  generally  accepted. 

40.  Every  case  ruled  by  its  own  cir- 

cumstances. 

41.  High  diligence  —  Gross  negli- 

gence. 

42.  Diligence    and    negligence  — 

Questions  of  law  and  fact. 

43.  Classification  of  conditions  and 

circumstances. 


§  32.  Object  of  chapter. —  It  is  not  our  intention  under  this 
head  to  go  fully  into  the  discussion  of  the  rights,  duties  and  lia- 
bilities of  the  parties  to  a  bailment,  but  simply  to  call  attention 
to  some  of  the  general  doctrines  touching  upon  that  subject,  and 
to  determine  more  particularly  the  rules  governing  the  same. 

§  33.  Gratuitous  and  non-gratuitous  bailments. —  We  have 
explained  and  defined  the  classification  of  bailments  somewhat 
in  detail,  and  shown  a  chart  which  exhibits  the  several  kinds 
of  bailment  relations.  The  most  general  subdivision  of  bail- 
ments is  (1)  gratuitous  bailments,  and  (2)  bailments  not  gra- 
tuitous. It  is  upon  these  subdivisions  that  the  degrees  of  liabil- 
ity are  based,  and  from  these  are  determined  the  degree  of  duty. 

§  34.  Consideration. —  While  the  bailment  relation  does  not, 
as  to  contracts,  rest  upon  a  consideration,  there  is  that  that  is 
somewhat  analogous  to  it  in  the  amount  of  benefit  that  moves 
to  the  bailor  or  bailee  in  the  particular  bailment;  not  that  it 
will  warrant  the  one  or  the  other  to  cease  to  exercise  good 
faith  and  carry  out  the  bailment  purposes,  but  that  it  will  lay 
upon  them  extra  or  further  responsibilities  in  the  performance 
of  the  trust  imposed. 

§  35.  Benefit  of  bailor,  or  bailee,  or  both. —  And  so  it  is  a 
settled  doctrine  of  bailments,  in  determining  rights,  duties  and 
liabilities,  to  determine  (1)  was  the  bailment  relation  for  the 
sole  benefit  of  the  bailor;  (2)  was  it  for  the  sole  benefit  of  the 
bailee,  or  (3)  was  it  for  the  benefit  of  both? 

2  17 


§§  3B,  37.] 


OKDINARY    BAILMENTS. 


[part 


§  36.  Negligence  or  diligence. —  Coupled  with  the  question 
of  benefit  is  the  question  of  negligence  or  diligence;  for  the  re- 
ceiving of  benefits  brings  the  requirement  of  diligence,  and  the 
absence  to  a  certain  extent  excuses  negligence.  If,  for  example, 
the  bailee  is  to  receive  no  compensation  and  no  benefit,  and 
the  bailment  relation  is  solely  for  the  benefit  of  the  bailor,  a 
'■''  depositum  or  a  ■mandatum^''  the  law  does  not  require  of  the 
bailee  so  high  a  degree  of  diligence  as  it  would  in  case  of  com- 
modatum,  when  the  benefit  is  entirely  for  the  bailee,  and  no 
benefit  whatever  to  the  bailor.  And  so  the  duties  and  liabili- 
ties of  the  bailee,  when  there  is  no  special  contract,  depend 
almost  entirely  upon  the  benefit  received,  and  the  diligence  he 
has  shown  or  the  negligence  he  is  guilty  of.  If  the  bailment, 
for  example,  is  for  the  sole  benefit  of  the  bailor,  the  law  only 
requires  of  the  bailee  slight  diligence,  and  holds  him  liable  for 
gross  negligence.  If  for  the  sole  benefit  of  the  bailee,  then  he 
is  held  to  high  diligence,  and  liable  for  slight  negligence;  if 
for  the  benefit  of  both  bailor  and  bailee,  ordinary  diligence  and 
ordinary  negligence. 

§37.  Chart  showing  duties  and  liabilities. —  The  rights, 
duties  and  liabilities  of  the  parties,  bailor  and  bailee,  the  de- 
gree of  diligence  to  which  they  are  held,  and  of  negligence  for 
which  they  are  liable,  may  be  shown  b}''  the  following  chart: 


IF  BAILMENTS  FOR 


MUST  EXERCISE 


LIABLE  FOR 


Sole  benefit  of  bailor,  1 
a  depositum  or  man-  \-  Slight  Diligence. 
datum.  J 


If  for  sole  benefit  of 
bailee,  a  commoda- 
turn.  J 

If  for  the   benefit  of 

both   bailor  and 

bailee,  a  pignus. 
Locatio  ret. 
Locatio    oporis    faei- 

endi. 
Locatio  custodice. 
Locatio    oporis     mer-   | 

cium,  vehendarum.      J 


High  Diligence. 


Gross  Negligexce. 


Slight  Negligence. 


►  Ordinary  Diligence. 


18 


-  Ordinary  Negligence 


I 


CH.  III.]  EIGHTS,  DUTIES    AND    LIABILITIES.  [§§   38-41. 

§  38.  What  is  dilii^ence  and  what  is  negligence. —  It  is  a 

difficult  matter  to  give  a  definition  of  diligence  or  negligence, 
or  of  high  diligence  or  gross  negligence,  as  applied  to  the  law 
of  bailments.  ISTegligence  and  diligence  are  relative  terms, 
and  depend  upon  the  circumstances  of  the  particular  case; 
what  would  be  diligence  in  one  case  would  be  far  short  of  it 
in  another. 

As,  for  example,  it  would  not  be  considered  negligent  for  a 
workman  to  smoke  a  cigar  in  a  foundry,  but  if  he  were  to  do 
so  in  a  powder-mill  it  would  be  the  grossest  of  negligence. 
So,  while  one  might  be  said  in  the  one  case  to  be  exercising 
ordinary  diligence,  in  the  latter  he  would  be  guilty  of  gross 
negligence. 

So,  on  driving  a  span  of  horses  to  a  wagon  in  the  coutitry 
where  there  were  few,  if  any,  using  the  highway,  it  might  be 
said  that  very  fast  driving  would  be  ordinary  diligence,  but 
as  he  approached  a  crowded  city  a  much  greater  caution 
would  be  required,  and  the  driving  at  the  high  rate  of  speed 
on  a  crowded  city  street  would  be  gross  negligence.  So  we 
see  that  very  many  elements  of  fact  enter  into  the  determina- 
tion of  the  question. 

§39.  Definition  generally  accepted. —  A  definition  gener- 
ally accepted  by  authors  and  the  profession  is,  "  ordinary  dili- 
gence is  that  care  and  diligence  which  an  ordinarily  prudent 
man,  under  like  circumstances,  would  exercise  in  matters  of 
his  own  concern." 

§40.  Every  case  rnled  by  its  own  circumstances. —  And 
so  it  may  be  seen  that  each  and  every  case  must  be  ruled  by 
its  own  facts  and  circumstances.  The  advent  of  every  new 
invention,  the  discovery  of  every  new  and  important  force 
that  is  appropriated  by  man  and  made  subservient  to  the  great 
on-marching  industries  in  these  days  of  progress,  bring  with 
them  new  and  varied  circumstances  and  conditions  which  must 
be  considered  in  defining  and  determining  what  is  negligence 
and  what  is  diligence  in  the  given  case.  The  principles  of 
law,  settled  and  staid,  remain  the  same,  but  the  facts  are  new 
and  continually  changing,  and  we  are  called  upon  to  marshal 
and  classify  them,  and  apply  the  governing  rules  of  law. 

§41.  High  diligence  —  Gross  negligence. —  We  have  de- 
fined diligence  by  adopting  the  usual  definition  of  that  terra, 

19 


§  41.]  OEDIXAKY  BAILMENTS.  [PAKT  I. 

and  have  seen  that  it  is  a  relative  term.  So,  high  diligence 
and  gross  negligence  are  alike  relative  terms  and  are  subject 
to  the  same  discussion  and  examples  of  explanation.  At  the 
most,  we  can  only  say  that  high  diligence  is  more  than  ordi- 
nary; slight  diligence  less  than  ordinary  diligence,  and  gross 
negligence  is  the  want  of  slight  diligence,  varying  in  degree 
according  to  the  elements  of  carefulness  or  want  of  care. 

The  degrees  of  diligence  or  negligence  can  only  be  defined 
by  comparison  with  that  diligence  which  is  usually  exercised 
by  the  ordinarily  prudent  man  in  caring  for  his  own  under 
like  circumstances.  High  diligence  is  a  degree  of  carefulness 
greater  than  that  care  usually  exercised  by  the  ordinarily  pru- 
dent man,  as  above  stated,  while  slight  diligence  is  not  so  much 
as  ordinary.  Gross  negligence  is  a  lesser  degree  of  care  than 
slight  negligence,  and  slight  negligence  is  less  than  ordinary 
care,  and  greater  than  gross  negligence.  And  so  it  can  be 
seen  it  would  be  exceedingly  difficult  to  accurately  define  de- 
grees of  diligence  or  negligence,  for  every  case  depends  on  its 
particular  facts. 

Mr.  Justice  Bradley  in  the  case  of  Bailway  Co.  v.  Lockwood^ 
in  discussing  this  question  said:  "The  defendants  endeavor 
to  make  a  distinction  between  gross  and  ordinary  negligence, 
and  insist  that  the  judge  ought  to  have  charged  that  the  con- 
tract was  at  least  efl'ective  for  excusing  the  latter. 

"  We  have  already  adverted  to  the  tendency  of  judicial  opin- 
ion adverse  to  the  distinction  between  gross  and  ordinary  neg- 
ligence. Strictly  speaking,  these  expressions  are  indicative 
rather  of  the  degree  of  care  and  diligence  which  is  due  from  a 
party  and  which  he  fails  to  perform,  than  of  the  amount  of 
inattention,  carelessness,  or  stupidity  which  he  exhibits.  If 
very  little  care  is  due  from  him,  and  he  fails  to  bestow  that 
little,  it  is  called  gross  negligence.  If  very  great  care  is  due 
and  he  fails  to  come  up  to  the  mark  required,  it  is  called  slight 
diligence.  And  if  ordinary  care  is  due,  such  as  a  prudent  man 
would  exercise  in  his  own  affairs,  failure  to  bestow  that  amount 
of  care  is  called  ordinary  negligence  .  .  .  and  hence  it  is  more 
strictly  accurate,  perhaps,  to  call  it  simply  '  negligence.'  And 
this  seems  to  be  the  tendency  of  modern  authorities.   'If  they 

1 17  Wall.  (U.  S.)  383. 
20 


CH.   III.]  KIGHTS,  DUTIES  AND    LIABILITIE3.  [§  42, 

mean  more  than  this,  and  seek  to  abolish  the  distinction  of 
degrees  of  care,  skill  and  diligence  required  in  the  perform- 
ance of  various  duties  and  the  fulfillment  of  various  contracts, 
we  think  they  go  too  far,  since  the  requirement  of  different 
degrees  of  care  in  different  situations  is  too  firmly  settled  and 
fixed  in  the  law  to  be  ig'nored  or  chanojed. 

"  The  compilers  of  the  French  Civil  Code  undertook  to  abol- 
ish these  distinctions  by  enacting  that  '  every  act  whatever  of 
man  that  causes  damage  to  another  obliges  him  by  whose 
fault  it  happened  to  repair  it.'  Toullier,  in  his  commentary 
on  the  code,  regards  this  as  a  happy  thought,  and  a  return  to 
the  law  of  nature.  But  such  an  iron  rule  is  too  regardless 
of  the  foundation  principles  of  human  duty,  and  must  often 
operate  with  great  severity  and  injustice." 

In  Huiton  v.  Dlbhons  ^  Lord  Denman  said :  "  It  may  well  be 
doubted  whether  between  gross  negligence  and  negligence 
merely  any  intelligible  distinction  exists." 

And  in  Wilson  v.  BriU  ^  Eolfe,  B.,  said :  "  I  could  see  no 
difference  between  negligence  and  gross  negligence;  that  it 
was  the  same  thing  with  the  addition  of  a  vituperative  epithet." 

But  for  all  the  criticism  of  learned  jurists,  the  fact  still  re- 
mains that  the  law  for  all  time,  since  the  days  of  Lord  Holt, 
has  recognized  these  different  degrees,  and  it  is  often  found 
necessary  to  distinguish  the  difference  in  degrees  under  certain 
facts  and  circumstances. 

§  4:3.  Diligence  and  negligence  —  Questions  of  law  and 
fact. —  It  may  be  said  that  the  question  of  diligence  or  negli- 
gence, and  the  degree  that  in  a  given  case  fixes  liability, 
is  a  mixed  question  of  law  and  fact ;  while  the  principles  of 
law  that  govern  the  case  as  to  the  degree  of  diligence  that  is 
required,  and  the  degree  of  negligence  that  will  render  the 
bailee  liable,  the  facts  that  determine  what  is  negligence  and 
what  is  diligence,  are  varied  and  always  depend  upon  the  cir- 
cumstances of  the  particular  case.  It  is  the  province  of  the 
court  to  determine  the  degree  of  diligence  that  must  be  exer- 
cised by  the  bailee  in  order  to  be  justified,  and  tiie  degree  of 
negligence  that  will  render  him  liable.  While  to  the  jury  is 
given  the  task  of  determining  whether  the  particular  facts  ad- 

12Q.  B.  646.  211M.  &W.  113. 

21 


g  43.]  OKDINARY    BAILMENTS.  [PAKT  I. 

duccd  are  sufficient  to  prove  that  negligence  or  diligence,  the 
degree  of  care  that  is  required  is  for  the  court  to  determine; 
whether  that  care  has  been  exercised  or  is  wanting  is  for  the 
jury  to  find  from  the  facts  that  are  proven.  Circumstances 
may  exist  that  would  require  the  court  to  determine  the  whole 
matter;  as,  for  example,  if  the  facts  were  such  that  every  fair 
and  reasonable-minded  man  could  draw  but  one  conclusion, 
such  that  among  fair  and  reasonable  men  there  could  be  no 
difference  of  opinion,  then  in  such  case  there  would  be  noth- 
ing for  the  jury,  and  the  court  would  determine  the  whole 
matter  as  a  question  of  law.  Such  a  case  would,  however, 
very  seldom  arise. 

§  43.  Classification  of  conditions  and  circumstances. — 
Much  has  been  said  and  written  by  law  writers  and  courts  of 
last  resort  by  way  of  classifying  the  several  conditions  and 
facts  that  aid  in  determining  these  questions. 

"  "What  constitutes  ordinary  diligence,"  says  Judge  Story ,^ 
"  may  always  be  materially  affected  by  the  nature,  the  bulk, 
and  the  value  of  the  articles.  A  man  would  not  be  expected 
to  take  the  same  care  of  a  bag  of  oats  as  of  a  bag  of  gold;  of 
a  bale  of  cotton  as  of  a  box  of  diamonds  or  other  jewelry;  of  a 
load  of  common  wood  as  of  a  box  of  rare  paintings;  of  a  rude 
block  of  marble  as  of  an  exquisite  sculptured  statue.  The 
value  especially  is  an  important  ingredient  to  be  taken  into 
consideration  upon  every  question  of  negligence;  for  that  may 
be  gross  negligence  in  the  case  of  a  parcel  of  extraordinary 
value  which,  in  the  case  of  a  common  parcel,  would  not  be  so. 
The  degree  of  care  which  a  man  may  reasonably  be  required 
to  take  of  anything  must,  if  we  are  at  liberty  to  consult  the 
dictates  of  common  sense,  essentially  depend  upon  the  quality 
and  value  of  the  thing,  and  the  temptation  thereby  afforded  to 
theft.  The  bailee,  therefore,  ought  to  proportion  his  care  to 
the  injury  or  loss  which  is  likel}''  to  be  sustained  by  any  im- 
providence on  his  part." 

Professor  Lawson  in  his  work  on  Bailments  gives  us  a  most 
valuable  "  classification  of  circumstances,"  which  we  here  quote 
and  discuss  in  the  order  and  under  the  different  classes  he  has 


1  Story  on  Bailments,  sec.  15;  Lawson  on  Bailments,  sec.  12, 

23 


CH.  III.]  KIGIITS,  DUTIES    AND    LIABILITIES.  [§  43. 

furnished.  Hesaj's:^  "The  circumstances  which  may  be  de- 
cisive as  to  the  sufficiency  of  the  care  exercised  by  a  bailee  in 
the  carrying  out  of  bis  trust  may  be  classed  under  four  heads, 
viz.: 

"  First.  The  nature  and  value  of  the  article. 

"  Second.  The  customs  of  the  place  or  trade. 

"  Third.  The  condition  of  the  country  or  climate. 

^^  Fourth.  The  condition  of  the  times." 

These  rules  seem  to  touch  almost  every  imaginable  case,  and. 
mention  of  a  few  examples  will  suffice  to  show  their  admirable 
practicability. 

First.  The  nature  and  value  of  the  artide.  One  in  charge 
of  heavy  and  almost  immovable  articles,  as  heavy  machinery 
or  castings,  would  not  be  deemed  guilty  of  negligence  if  he 
should  leave  them  out  of  doors  during  the  night  unguarded; 
even  in  a  large  city  it  would  be  considered  ordinary  prudence. 
But  the  jeweler  could  hardly  be  excused  for  leaving  a  box  of 
valuable  diamonds  even  outside  of  his  strong  safe  doors;  to  do 
so  would  be  gross  negligence.  Examples  will  suggest  them- 
selves equally  as  pertinent.  The  common  carrier  who  is  in- 
trusted to  carry  glassware  is  called  upon  to  exercise  that  degree 
of  diligence  and  care  which  the  subject  of  the  bailment  de- 
mands, and  he  cannot  treat  it  as  he  would  if  it  were  iron  cast- 
ings or  freight  that  would  not  be  so  easily  damaged.  If  the 
subject  of  the  bailment  is  of  great  value,  it  is  the  duty  of  the 
bailee  to  exercise  a  degree  of  dilio;ence  which  the  care  of  such 
a  bailment  demands.  The  banker  must  supply  his  safe  with 
improved  locks,  and  guard  the  deposits  of  his  customers  in  such 
a  manner  as  the  property  in  his  custody  demands.  The  car- 
riage maker  who  is  repairing  a  valuable  carriage  would  be  in 
duty  bound  to  lock  it  in  his  shop  or  storehouse  at  night,  while 
the  wagon  of  little  or  no  value  in  his  custody  for  the  same 
purpose  might  be  left  in  the  back  yard  of  his  place. 

Second.  The  customs  of  the  flace  or  trade.  Prof.  Lawson 
cites  the  case  of  Cass  v.  Railroad  Co.^  in  which  the  court  say:  "  If 
the  defendants  exercised  due  and  ordinary  care  in  the  custody 
of  the  property,  they  cannot  be  charged  for  its  loss.  What 
constituted  such  a  case  was  a  question  of  fact  to  be  judged  of 

1  Story  on  Bailments,  sec.  15;  Law-        - 14  Allen  (Mass.),  448. 
son  on  Bailments,  sec.  13. 

23 


I  43.]  ORDINARY    BAILMENTS.  [PART  I. 

with  reference  to  the  degree  of  care  which  other  persons  en- 
gaged in  similar  business  were  in  the  habit  of  bestowing  on 
property  similarly  situated.  The  standard  of  ordinary  care 
varies  necessarily  in  different  localities.  One  degree  of  dili- 
gence would  be  required  for  the  city,  and  a  less  or  greater  for 
the  country,  depending  upon  a  variety  of  circumstances." 

Fourth.  The  condition  of  the  times.  Examples  to  illustrate 
this  are  numerous,  and  would  no  doubt  be  interesting.  If  we 
turn  our  attention  to  the  conditions  that  prevailed  a  century 
ago,  we  should  find  that  that  which  was  considered  prudent 
and  ordinarily  diligent  would  now,  perhaps  because  of  the  ad- 
vances made,  be  considered  negligence.  Then,  the  farmer 
would  not  be  considered  negligent  if  he  allowed  his  stock,  cat- 
tle, sheep  and  horses  to  run  at  large  upon  the  highways,  or 
upon  his  unfenced  acres,  while  now  with  the  railways  that 
have  passed  through  the  same  broad  acres,  and  over  which  the 
railroad  companies  are  running  their  fast  freight  and  express 
trains,  have  so  changed  the  condition  that  it  would  be  negli- 
gence to  allow  live  stock  to  run  at  large;  and  so  the  ordinarily 
prudent  man  must  confine  his  stock,  or  restrain  them  in  such 
a  manner  that  such  accident  may  be  avoided.  Then,  the 
driver  of  the  carriage  or  the  coach  through  the  streets  of  our 
cities  need  not  look  and  listen  for  the  electric  car  that  now  is 
driven  through  the  same  street  at  a  rate  of  from  six  to  twenty 
miles  an  hour.  The  adoption  of  the  hundreds  of  new  inven- 
tions brings  with  them  new  responsibilities  and  imposes  new 
and  important  cares.  Circumstances  might  have  existed  when 
it  would  not  be  careless  or  negligent  for  one  in  charge  of  the 
property  of  another  to  fail  to  guard  it  from  danger  arising  from 
thieves  or  robbers  by  omitting  to  place  it  behind  locks  and  bolts, 
while  at  the  present  not  to  so  care  for  it  would  be  the  grossest 
of  negligence.  And  so  negligence  has  been  defined  to  be  "  a 
breach  of  a  duty  to  exercise  commensurate  care  resulting  in 
damages." 

24 


CHAPTER  IV. 

SOME  FURTHER  GENERAL  PRINCIPLES  TOUCHING  RIGHTS  AND 
LIABILITIES  OF  PARTIES  TO  BAILMENT. 


§  44. 

An  element  of  agency. 

§  62. 

Not   always  required  to  rede- 

45. 

Under  circumstances  may  bind 

liver  the  specific  property. 

bailor. 

63. 

Excuses  for  non-delivery. 

46. 

Right  to  use  the  property. 

64. 

Conversion  of  the  property. 

47. 

Unwarranted  use  would  render 

65. 

Bailee's  right  to  compensation 

the  bailee  liable. 

and  to  a  lien  upon  the  prop- 

48. 

Bailee  may  protect  the  prop- 

erty. 

erty  and  his  interest. 

66. 

Agreement  for  compensation, 

49. 

Skilled  bailee. 

express    or    implied,    neces- 

50. 

Rule     not     always    carefully 

sary  to  create  lien. 

stated. 

67. 

If  no  statute  or  express  con- 

51. 

Special  deposits  in  banks. 

tract  creating  common  law 

53. 

Determining   negligence. 

lien. 

53. 

Honesty    and    good  faith   de- 

68. 

Two  kinds  of  liens. 

manded. 

69. 

Delivery  to  the  bailee  for  the 

54. 

Bailee    may    protect    himself 

purpose  of  the  baihuent  nec- 

against claim  of  third  par- 

essary to  the  establishment 

ties. 

of  the  lien. 

55. 

What  would  excuse  liability. 

70. 

Possession  of  the  property  an 

56. 

Unlawful    tortious    possession 

essential. 

would  render    bailee  liable 

71. 

The    finder    of  property   may 

for  injury  or  loss. 

have  lien. 

57. 

Rights  and  duties  to  third  par- 

73. 

Extinction  of  the  lien  —  Pay- 

ties. 

ment  or  tender. 

58. 

Bailee  against  third  parties. 

73. 

The  lien  may  be  waived. 

59. 

Modifying  or  enlarging  respon- 

74. 

Lien   once  lost  cannot  be  re- 

sibility by  contract. 

vived. 

€0. 

How  far  can  the  bailee  lessen 

75. 

Right  of  the  bailor  to  compen- 

his   responsibility    by    con- 

sation. 

tract. 

76. 

Enforcement    of   the    lien    of 

61. 

Redelivery  to  bailor. 

bailee. 

§  44.  An  element  of  agency. —  Where  the  bailee,  acting 
within  the  scope  of  the  bailment  contract  and  in  good  faith, 
has  found  it  necessary  to  make  expenditures  in  order  to  pre- 
serve the  subject  of  the  bailment,  as,  for  example,  if  the  subject 
of  the  bailment  be  a  valuable  horse,  and  the  horse  should  be 
taken  sick,  the  bailee  would  be  justified  in  employing  a  veteri- 

25 


§§  45-47.]  ORDINARY  BAILMENTS.  [PART  I^ 

nary  and  in  purchasing  medicine  to  restore  the  health  of  the 
horse.  And  should  the  horse  break  out  of  the  inclosure  by  no 
fault  of  the  bailee,  and  become  impounded  for  damage  done, 
the  bailee  would  be  expected  to  pay  the  damage.  Acting  in 
good  faith,  and  within  the  reasonable  scope  and  necessity  of 
the  bailment  contract,  expressed  or  implied,  the  bailee  should 
pay  necessary  expenses  and  damages,  and  may  recover  the 
same  from  the  bailor.  In  this  respect  the  same  rule  applies 
that  is  applicable  to  principal  and  agent. 

§  45.  Under  circumstances  may  bind  bailor. —  And  so  un- 
der circumstances  which  make  it  reasonably  necessary,  the 
bailee  may  contract  for  the  care  of  the  bailed  property  in  the 
name  of  the  bailor,  and  the  bailor  will  be  bound  to  pay  for 
the  same.  The  law  takes  a  broad  common-sense  view  of  the 
matter.  If  the  property,  the  subject  of  the  bailment,  is  ani- 
mals, it  is  understood  they  must  be  fed  and  perhaps  sheltered; 
if  other  property,  perhaps  insured;^  so  the  bailee  would  have 
authority  to  do  with  the  bailment  what  he  would  do  under 
just  such  circumstances  if  it  were  his  own. 

§  46.  Right  to  use  the  property. —  The  general  rule  is  that 
the  bailee  has  no  right  to  use  the  bailed  property;  he  is  simply 
to  keep  the  property  in  his  custod}^,  and  give  it  such  care  as 
good  faith  and  reasonable  and  fair  judgment  demands.  There 
are,  however,  exceptions  to  this  rule,  or  at  least  apparent  ex- 
ceptions, in  cases  where  the  proper  care  of  the  property  would 
require  that  it  be  used.  As,  for  example,  a  milch  cow;  it  would 
be  the  duty  of  the  bailee  to  milk  her  at  the  usual  time,  indeed 
this  would  be  required,  and  to  fail  to  do  this  would  render  him 
liable  in  damages.  A  flock  of  sheep  would  require  for  proper 
care  that  their  wool  should  be  removed  w^hen  the  summer 
months  come  on.  These  cases  could  hardly  be  called  excep- 
tions to  the  general  rule,  because  it  is  the  kind  of  care  that  the 
property  demands. 

§  47.  Unwarranted  use  would  render  the  bailee  liable. — 
Should  the  bailee  use  the  property  to  an  extent  unwarranted 
by  the  bailment,  he  would  become  liable  to  the  bailor  in  an 
action  for  damages,  and  under  certain  circumstances  for  con- 

1  Fagan  v.  Thompson,  38  Fed.  467;  Furness  v.  Un.  Nat.  Bank,  147  111.  170. 

26 


CH.   IV^]  GENERAL    PRINCIPLES.  [§   47. 

version  of  the  property,  depending  somewhat  upon  the  extent 
of  the  damage  to  the  property. 

The  use  to  which  the  property  may  be  put  is  often  fixed  by 
the  contract  of  bailment,  but  if  there  is  no  expressed  contract 
fixing  the  use  of  the  property,  then  it  must  be  determined  by 
the  attending  circumstances,  the  nature  of  the  property,  and 
what  miglit  be  reasonably  presumed  to  be  a  proper  and  neces- 
sary use.  As,  for  example,  if  the  property  bailed  were  a  fine 
carriage  team  which  were  let  to  the  bailee  for  the  purpose  of 
pleasure  driving,  if  he  should  put  them  on  a  plow  and  work 
them  upon  a  farm,  there  would  be  no  difficult}''  in  concluding 
that  he  was  putting  the  bailed  property  to  an  unauthorized 
use. 

A  leading  case  upon  the  subject  is  that  of  Alvord  v.  Dav- 
enport,^ where  Mr.  Justice  Parke  gives  us  a  very  clear  dis- 
cussion of  the  subject.  He  says:  "The  authorities  seem  to 
agree  that  the  right  of  the  bailee  to  use  the  property,  in  the 
absence  of  express  contract  on  the  subject,  depends  on  the  cir- 
cumstances of  the  case,  the  character  and  purpose  of  the  bail- 
ment, the  nature  of  the  property  in  connection  with  the  other 
attending  circumstances.  One  test  or  principle  applicable  to 
the  subject  is  to  consider  whether  from  the  circumstances  the 
consent  of  the  owner  to  the  use  may  fairly  be  presumed.  It  is 
said  in  the  books  that  if  the  use  w^ould  be  for  the  benefit  of  the 
property,  the  assent  of  the  owner  should  generally  be  pre- 
sumed, but  not  so  if  the  use  would  be  Injurious  or  perilous.  It 
would  seem  that  if  the  use  would  be  indifferent,  the  right  to 
use  should  be  determined  the  w^ay  other  circumstances  incline. 
In  some  cases  the  assent  of  the  owner  may  be  inferred  as  a 
fact  from  the  circumstances;  but  that  is  not  in  all  cases  neces- 
sary; for  in  some  cases  the  presumed  assent  is  a  mere  fiction, 
and  the  question  as  to  the  right  of  the  bailee  to  use  the  prop- 
erty becomes  a  question  of  law  upon  a  given  state  of  facts 
without  reference  to  any  actual  assent  of  the  owner  in  fact. 
It  is  generally  not  only  the  right,  but  the  duty,  of  the  bailee 
to  use  the  property  so  far  as  necessary  to  its  preservation.  To 
this  extent  the  assent  of  the  owner  may  be  presumed  — as  in 
case  of  the  milking  of  a  milch  cow;  and  in  the  case  of  a  horse, 

l43Vt.  30. 
27 


§§  48,  49.]  OKDINARY  BAILMENTS.  [PART  I. 

exercise  and  moderate  use  to  the  extent  necessary  to  the  health 
and  vigor  of  the  animal.  Again,  it  is  laid  down  by  the  ele- 
mentary writers  that  the  right  to  use  the  property  may  depend 
on  whether  it  is  property  of  a  nature  that  requires  expense  to 
keep  it;  and  if  so,  the  bailee  may  use  it  reasonably  to  com- 
pensate him  for  the  charge  of  keeping.  This  fact,  however, 
would  not  necessarily  determine  the  right  without  reference  to 
the  character  of  the  bailment  and  other  circumstances." 

It  may  be  said  to  be  the  general  holding  that  "  the  right  of 
a  bailee  to  use  the  thing  bailed  is  strictly  confined  to  the  use 
expressed  or  implied  in  the  particular  transaction ;  and  in  case 
of  an  unauthorized  use,  the  bailee  makes  himself  liable  for 
any  loss,  although  it  be  by  inevitable  casualty."^ 

§  48.  Bailee  may  protect  tlie  property  and  his  interest. — 
As  we  have  seen,  the  bailee  only  has  a  possessory  title  to  the 
bailed  property,  and  the  right  to  its  custody  and  use  to  the 
extent  of  the  contract  of  bailment,  but  that  title  is  paramount 
to  any  other  claim  except  the  title  of  the  owner,  and  during 
the  legal  existence  of  the  bailment,  even  the  owner  cannot  dis- 
turb the  bailee  in  his  possession,  custody,  and  use  to  the  extent 
of  the  contract. 

The  bailee  may  bring  replevin  for  the  possession  of  the  prop- 
erty, and  in  some  instances  trover  for  its  value;  as  when  it  is 
destroyed  or  damaged  to  an  extent  that  the  benefits  of  posses- 
sion are  impaired;  or  where  it  would  be  necessary  to  protect  it, 
the  owner  may  sustain  an  action  of  trover  for  its  value. 

§  49.  Sliilletl  bailee. —  Where  the  care,  custody  or  services 
are  undertaken  by  a  gratuitous  bailee  who  is  skilled  in  the  par- 
-  ticular  business  involved,  the  same  general  rule  of  diligence 
applies.  It  will  be  seen,  however,  that  even  slight  diligence 
in  such  a  case  might  secure  to  the  bailor  the  benefit  of  skilled 
professional  service,  because,  although  the  bailee  is  to  receive 
no  compensation,  the  bailor  is  entitled  to  receive  the  kind  of 
service,  care  and  custody  the  bailee  holds  out  to  the  public  he 
is  competent  to  perform.     As,  for  example,  where  a  watch  is 

iLane  v.   Cameron,  38  Wis.  603;     tious  that  he  was  not  to  use  him  in 
Devoin  v.  Lumber  Co.,  64  Wis.   616,     any  way,  the  use  of  him  under  the 
54  Am.  Rep.  649;  Clark  v.  Whitaker,     baihnent  was  a  conversion.     Collins 
19  Conn.  319.     Where  a  bailee  ac-     v.  Bennett,  46  N.  Y.  490. 
cepted  a  horse  to  board  with  direo- 

28 


CH.  IV.]  GENERAL   PRINCIPLES.  [§§   50,  51. 

left  with  a  skilled  watchmaker  for  repairs,  the  repairs  to  be 
ma'de  without  compensation,  he  is  required  to  render  such 
service  as  he  claims  and  gives  out  he  is  able  to  render,  and  to 
do  less  than  that  would  be  gross  negligence.  The  same  rule 
is  applied  in  the  case  of  a  skilled  surgeon,  who,  without  com- 
pensation, undertakes  to  perform  a  surgical  operation.  He 
must  use  all  of  the  professional  skill  he  ordinarily  uses  and 
gives  out  to  the  public,  and  to  those  Avho  employ  him,  that  he 
is  in  the  habit  of  using.  And  it  may  be  said  that  this  same 
rule  would  apply  in  cases  of  special  deposits  in  banks;  although 
there  is  no  compensation,  and  the  bailment  is  gratuitous,  the 
exercise  of  less  skill  and  care  in  looking  after  the  property  than 
the  bank  would  usually  exercise  in  matters  of  its  own  would 
be  considered  gross  negligence,  and  if  loss  or  injury  resulted 
from  it  the  bank  would  be  liable.  Very  many  examples  might 
be  given,  but  sufficient  have  been  noticed  to  illustrate  the  rule. 

§  50.  Rule  not  always  carefully  stated. —  It  would  appear 
that  there  is  quite  a  tendency  among  a  few  of  the  judges  to 
loosely  state  the  degree  of  diligence  required,  especially  in 
cases  of  the  bailee  in  gratuitous  bailments;  and  according  to 
some  of  the  cases  it  would  seem  that  "  ordinary  diligence " 
is  always  required,  or  the  same  degree  of  diligence  that  is  re- 
quired in  "  mutual  benefit "  bailments,  for  they  fail  to  make 
any  distinction;  lout  the  better  class  of  authority  has  alwa3'-s 
clung  to  the  doctrine  of  degrees  of  diligence  and  negligence  in 
fixing  or  excusing  liabilit3^ 

§51.  Special  deposits  in  banks. —  In  these  cases  two  im- 
portant questions  are  generally  involved:  1st.  The  question  as 
to  whether  the  servants  of  the  bank  (corporation)  acted  within 
the  scope  of  their  authority,  and  for  the  bank  in  accepting  the 
property;  and  2d.  The  question  of  diligence  or  negligence  that 
occasioned  its  loss. 

As  we  have  seen,  a  corporation-may  be  a  bailee  of  property; 
but  as  a  corporation,  from  its  very  nature,  must  of  necessity 
act  by  its  officers  and  servants,  the  question  at  once  presents 
itself:  in  doing  the  business,  in  accepting  the  trust,  were  they 
acting  as  corporate  officers  or  individuals?  Was  their  action 
within  the  corporate  powers  of  the  bank?  For  if  the  act  done 
was  not  within  the  corporate  authority,  it  would  be  held  to  be 
an  individual  act  of  the  officers  or  servants,  and  the  corpora- 

29 


§§  52,  53.]  OEDINAKY    BAILMENTS.  [PART  I. 

tion  would  not  be  liable;  and  so  if  the  officers  or  servants  did 
not  act  nor  pretend  to  act  within  the  scope  of  their  authority 
to  the  knowledcre  of  the  bailor  the  bank  would  not  be  liable. 
If,  however,  the  accepting  of  the  trust  was  within  the  corpo- 
rate authority,  and  the  officers  or  servants  were  acting  within 
the  scope  of  their  powers,  then  the  second  question,  as  to  neg- 
ligence or  diligence  resulting  in  loss,  would  determine  the 
question  of  liability  of  the  corporation. 

§  52.  Determining  negligence. —  Yery  many  ques- 
tions arise  in  determining  negligence  on  the  part  of  the  cor- 
poration. As  in  case  of  a  bank  that  is  the  depositary  of  a 
special  deposit:  Did  the  corporation  furnish  a  suitable,  fit  place 
for  the  keeping  of  the  property  safe  from  fire  or  from  robbers? 
If  stolen  by  its  own  servants  or  officers  in  charge,  did  the  bank 
have  knowledge  that  they  were  dishonest?  Did  the  bank  use 
diligence  in  the  employment  of  fit  and  proper  servants? 

In  a  Massachusetts  case.  Smith  v.  First  National  Baiik^  it 
was  held,  in  a  case  of  special  deposit  which  was  lost  from  the 
bank  vaults,  that  in  case  of  gratuitous  bailment  it  must  appear 
that  the  corporation  was  guilty  of  gross  carelessness  which 
was  the  result  of  the  loss,  and  that  this  might  appear  from  the 
fact  that  the  corporation  did  not  furnish  a  proper  place  for 
the  custody  of  the  property ;  or  from  failure  to  take  proper 
precautions  in  guarding  the  place ;  or  negligence  in  selecting 
suitable  persons  to  attend  to  the  care  and  custody;  or  in  fail- 
ing to  discharge  persons  after  having  knowledge  of  their  un- 
fitness. In  Pennsylvania  the  court  held,  in  a  case  where  bonds 
were  deposited  with  the  bank  as  a -special  deposit  and  were 
stolen  by  the  teller,  that  "nothingshortof  a  knowledge  of  the 
true  character  of  the  teller,  or  of  reasonable  grounds  to  sus- 
pect his  integrity,  followed  by  a  neglect  to  remove  him,  can 
be  said  to  be  gross  negligence  without  raising  a  contract  for 
care  higher  than  a  gratuitous  bailment  can  create."  ^ 

This  discussion,  however,  belongs  to  another  part  of  our  sub- 
ject, viz.,  the  liability  of  gratuitous  bailees. 

§  53.  Honesty  and  good  faith  demanded.— Nothing  short 
of  honesty  and  good  faith  will  excuse  the  bailee  in  case  of  loss 

1 99  Mass.  605-611.  2  Seott  v.  National  Bank  of  Chester 

Valley,  72  Pa.  St.  471-79. 
9  30 


■OH.   IV.]  GENERAL    PRINCIPLES.  [§   54:. 

or  injury.  Every  bailment  relation  is  a  contract  relation,  either 
express  or  implied ;  a  contract  which  imposes  certain  responsi- 
bilities upon  the  parties  to  the  bailment,  and  this  contract  must 
be  strictly  and  in  good  faith  carried  out  by  the  parties.  The 
bailor  must  in  good  faith  and  honestly  do  his  duty  in  the  mat- 
ter of  the  bailment.  The  law  will  not  permit  him  to  do  any- 
thing that  will  impair  or  encroach  upon  the  legal  rights  of  the 
bailee  in  the  full  possession  and  enjoyment  of  the  property  to 
the  extent  of  the  bailment  contract;  as,  for  example,  by  depriv- 
ing the  bailee  of  the  possession,  or  by  injuring  the  property, 
and  thus  making  it  less  useful;  and  on  the  other  hand,  the 
bailee  is  held  to  strict,  good  faith  and  honesty  in  carr^ang  out 
the  contract  relation.  He  cannot  sell  or  pledge  the  property 
or  otherwise  deal  with  it  in  a  way  to  injure  the  bailor;  and 
while  in  possession  as  bailee  he  will  not  be  allowed  to  set  up 
a  claim  of  ownership  in  himself;  and  should  he  become  the 
owner  of  a  title  adverse  to  the  title  of  the  bailor,  he  must  first 
return  the  possession  of  the  property  to  the  bailor  before  he 
will  be  heard  in  the  courts  to  assert  his  own  claim  of  title;  and 
should  the  bailee  undertake  to  obtain  the  title  adverse  to  the 
bailor,  the  bailor  could  at  once  recover  the  possession  of  the 
property,  and  the  bailment  contract  would  at  once  be  con- 
sidered at  an  end.^ 

§  54.  Bailee  may  protect  himself  against  claim  of  third 
parties. —  While  the  bailee  cannot  hold  the  property  adversely 
to  the  bailor  to  benefit  himself,  or  obtain  for  himself  title  ad- 
verse to  the  bailor,  he  may,  in  case  the  property  is  claimed, 
and  the  possession  demanded  by  a  third  party,  protect  himself 
from  damage  on  account  of  the  adverse  claims  of  the  bailor 
and  the  third  party.  (1)  He  may  compel  the  parties  claiming 
title  to  interplead,  and  thus  obtain  judgment  of  the  court  as  to 
which  of  them  is  entitled  to  the  property ;  or  (2)  at  his  peril  he 
may  recognize  the  claim  of  the  third  party  and  join  with  him 
to  sustain  his  title  to  the  property.  This,  however,  he  does  at 
his  risk;  for  if  the  bailor  should  sustain  his  title,  he  could  by 
reason  of  the  action  of  the  bailee  terminate  the  bailment. 

1  Osgood  V.  Nichols,  5  Gray  (Mass.),  Mich.  392;  Barron  v.  Landes,  1  Duv. 
430;  Burley  v.  Hamilton,  15  Pick.  (Ky.)  299;  and  see  cases  cited  3  Am. 
(Mass.)  40;    Sinclair  v.  Murphy,   14    &  Eng.  Encyl.  (2d  ed.)  758,  759. 

31 


§^  55-57.]  ORDINARY    BAILMENTS.  [PART    I. 

§55.  WliJit  would  excuse  liability. —  If  the  property  in 
possession  of  tbe  bailee  is  lost,  injured  or  destroyed  by  reason 
of  the  act  of  God,  the  public  enemy,  irresistible  force  or  in- 
evitable accident,  or  by  fire  or  robbery  without  the  negligence 
of  the  bailee,  the  bailee  would  not  be  liable;  the  degree  of 
diligence  that  would  be  required,  or  of  negligence  that  would 
render  him  liable,  would  depend  upon  the  kind  of  bailment  and 
will  be  discussed  in  another  chapter.  We  here  state  the  general 
rule  in  cases  where  it  is  understood  that  the  bailee  acted  in 
good  faith. 

§  56.  Unlawful  tortious  possession  would  render  bailee 
liable  for  injury  or  loss. —  If  the  bailee  has  obtained  posses- 
sion of  the  property  unlawfully  or  tortiously,  then  none  of  the 
conditions  stated  in  the  last  paragraph  would  excuse  him  from 
liability;  he  would  be  liable  absolutely.  The  usual  example 
given  is,  if  one  unlawfully  or  tortiously  obtaining  possession 
of  my  boat  and  losing  it  in  a  storm,  no  matter  how  careful  he 
may  have  been  in  its  management,  no  matter  if  the  loss  was 
occasioned  by  the  act  of  God,  because  of  the  tortious  unlawful 
possession,  he  would  be  liable  at  all  events.  And  so  the  tor- 
tious departure  from  the  terms  of  the  contract,  and  misappro- 
priating the  property  or  misusing  it,  renders  the  bailee  liable. 

§57.  Rights  and  duties  as  to  third  parties. —  (1)  Bailor 
liahle  to^forfurnisldng  certain  necessaries.  As  we  have  seen, 
a  gratuitous  bailee  is  entitled  to  reimbursement  which  he  has 
necessarily  made  or  incurred  for  the  preservation  of  the  prop- 
erty. It  therefore  follows  that  third  persons  who  have  furnished 
to  such  a  bailee  that  which  is  necessary  for  the  preservation  of 
the  property  and  for  the  carrying  out  of  the  bailment  would 
be  entitled  to  be  reimbursed,  and,  upon  failure  of  the  bailor  to 
do  so,  the  party  could  sustain  an  action  against  him.  The  rule 
might  be  different  in  other  classes  of  bailment  and  would  de- 
pend somewhat  upon  the  contract. 

(2)  Bailor^s  action  against.,  for  injuries  or  for  jyroperty .  The 
possession  of  the  property,  and  often  the  use  of  it,  is  with  the 
bailee;  it  therefore  follows  that  the  bailor  could  not  sustain 
trespass  or  replevin;  but  should  the  loss  or  injury  be  permanent 
or  so  serious  as  to  injure  the  value  of  the  property,  the  bailor 
could  sustain  a  special  action  for  the  same.^ 

1  Lexington  v.  Kidd,  7  Dana  [Ky.),  245. 
32 


CII.  IV.]  GENEKAL    PKINGIPLES.  [§^  58,  59. 

§  58.  Bailee  against  third  parties. —  The  bailee  is  entitled 
to  the  possession  of  the  property.  This  is  the  very  essence  of 
his  rights  as  a  bailee;  he  therefore  has  a  special  right  or  prop- 
erty in  the  chattel  to  the  extent  of  his  bailment  contract  and 
can  protect  it  against  wrong-doers,  loss  or  injury.  Therefore, 
if  the  chattel  be  lost  by  a  common  carrier^  or  innkeeper,'-^  or  is 
injured  or  converted  by  a  trespasser,^  the  bailee  may  sustain 
an  action  for  the  property.  In  such  cases  the  damages  are  not 
confined  to  the  mere  interest  of  the  bailee,  but  in  case  of  injury 
or  loss  of  the  property  he  may  recover  its  full  value,  together 
with  any  special  damage  to  him,  and  for  all  beyond  his  own 
interest  he  would  be  a  trustee  for  the  bailor  or  owner.* 

§  50.  Modifying:  or  enlarging  responsibility  by  contract. — 
The  bailee  may  by  contract  enlarge  his  liability  to  the  extent 
of  becoming  an  insurer  of  the  property  against  the  perils  to 
which  it  is  understood  by  the  parties  it  is  to  be  exposed ;  and 
the  contract  may  be  express  or  implied,  and  the  bailment  or 
compensation  to  be  received  therefor  is  a  sufficient  considera- 
tion for  such  an  undertaking.'^  It  is  not  infrequently  the  case 
that  the  bailee  by  contract  undertakes  to  return  the  property 
in  as  good  condition  as  when  taken  by  him,  thus  enlarging 
his  liability.^ 

In  Reinstine  v.  Watts  it  was  held  that-the  reception  of  mer- 
chandise by  a  bailee  under  an  invoice  distinctly  stating  that 
such  merchandise  is  at  the  risk  of  the  bailee  against  loss  by 
fire,  or  otherwise,  until  returned,  no  other  agreement  appear- 
ing, conclusively  implies  a  promise  upon  the  part  of  the  bailee 
to  assume  such  risk.''  And  m  Drake  v.  White  ^  it  was  held 
that  a  creditor  who  stipulated  with  his  debtor,  upon  receiving 
personal  property  as  security,  that  he  would  return  the  prop- 
erty or  pay  for  it  if  the  debt  was  paid,  would  be  held  to  that 
contract,  the  court  saying,  "  there  can  be  no  doubt,  if  a  cred- 

1  Moran  v.  Portland  Steam  Packet  *  Littlefield  v.Biddeford,29Me.  310; 
Co.,  35  Me.  55;  Elkins  v.  Burton  Ry.  Woodman  v.  Notinghain,  49  N.  H. 
Co., -19  N.  H.  337.  387. 

2  Chamberlain  v.  West,  37  Minn.  54.        »  Strum  v.  Baker,  150  U.  S.  312. 

3  Peoria  Ry.  Co.  v.  Mclntyre,  39  N.        «  Hunt  v.  Wyman,  100  Mass.  198. 
Y.  298;  Little  v.  Fossett,  34  Me.  545;        ^  Si  Me.  139;  Vigo  AgrL  Society  v. 
Faulkner  v.  Brown,   13  Wend.   63;  Brumfiel,  102  Ind.  146. 

Knight  V.  Davis  Car  Co.,  71  Fed.  6G3.        8 117  Mass.  10. 
See  cases  cited  in  3  Encyl.  761. 

3  33 


§§  Go,  61.]  ORDINARY    BAILMENTS.  [PART    I. 

itor  sees  fit  to  accept  a  deposit  of  security  upon  such  terms, 
and  to  place  himself  in  the  position  of  an  insurer  of  its  safety, 
he  can  do  so." 

§  60.  How  far  can  the  bailee  lessen  his  responsibility  by 
contract. —  Upon  this  there  is  perhaps  not  so  great  unanimity 
among  the  authorities;  it  is,  however,  settled  that  the  contract 
must  not  go  to  the  extent  that  it  may  be  said  to  be  in  contra- 
vention of  positive  law,  or  against  public  policy,  or  it  will  be 
disregarded;  and  so  it  follows  that  a  bailee  cannot  contract 
against  his  own  fraud,  nor  that  he  will  not  be  liable  for  gross 
negligence,  for  that  is  held  to  be  equivalent  to  fraud.  For, 
says  Judge  Story,  "  The  law  will  not  tolerate  such  an  indecency 
and  immorality  as  that  a  man  shall  contract  to  be  safely  dis- 
honest. It  therefore  declares  all  such  contracts  utterly  void, 
and  holds  the  bailee  liable  in  the  same  manner  and  to  the 
same  extent  as  if  no  such  contract  ever  existed."  ^ 

§61.  Redelivery  to  bailor. —  With  some  few  exceptions, 
which  will  be  noted,  it  is  the  duty  of  the  bailee,  when  the  ob- 
ject of  the  bailment  has  been  accomplished,  to  return  the  prop- 
erty to  the  bailor,  or  to  the  person  designated  by  the  contract 
of  bailment,  together  with  all  accessions  to  it  during  the  term, 
and  upon  refusal  to  do  so,  unless  he  has  some  legal  excuse  for 
not  redelivering  the  property,  he  will  be  guilty  of  conversion, 
and  the  bailor  can  recover  the  value  of  the  property,  or  by  an 
action  of  replevin  the  specific  property .^  As  a  general  rule 
the  bailor  has  a  right  to  the  redelivery  of  the  specific  property 
bailed  and  cannot  be  compelled  to  accept  other  property  of 
the  same  kind  of  equal  value  and  quantity  in  lieu  of  it.  In 
Atkins  V.  Gamble^  the  court  say:  "The  reason  of  the  rule  is 
obvious.  The  owner  may  have  had  special  reasons  for  desiring 
to  retain  that  specific  chattel;  and  there  may  be  reasons  why 
he  attached  a  peculiar  value  to  it  beyond  the  value  of  other 
chattels  of  a  precisely  similar  kind.  If  his  desire  in  this  respect 
be  the  result  of  mere  caprice,  he  is  entitled  to  be  gratified  in 
the  exercise  of  it.  .  .  .  Hence  the  owner  of  such  chattel 
cannot  be  compelled  to  accept  in  lieu  of  it  another  w^hich  ap- 

1  Story,    Bailments,  sec.   32;   Lan-    See,   51   N.  J.   L.  378;    Holbrook  v. 
caster  Co.  Mut.  L  Bank  v.  Smith,  63    Wight,  24  Wend.  169. 

Pa.  St.  47.  3  42  CaL  86. 

2  Ball  V.  Liney,  48  N.  Y.  9;  Dale  v. 

34 


i 


CH.   IV.]  GENERAL    PRINCIPLES.  [§  62. 

pears  to  be  precisely  similar  and  of  equal  value.  .  .  .  But, 
we  think,  the  reason  of  the  rule  ceases  when  applied  to  stocks. 
It  is  impossible  that  any  sane  person  should  have  centered  his 
affections  upon  a  particular  stock  certificate,  or  that  any  vio- 
lence could  be  done  to  his  feelings  by  requiring-  him  to  accept 
another  certificate  of  precisely  similar  character  in  lieu  of  it.  His 
own  certificate  was  only  the  evidence  that  he  owned  an  undi- 
vided interest  in  the  capital  and  business  of  the  corporation. 
Another  certificate  of  the  same  kind,  for  the  same  amount  of 
stock,  would  entitle  him  to  precisely  the  same  rights  as  the 
former  certificate.  Each  would  be  a  precise  equivalent  of  the 
other,  and  it  is  certain  he  could  suffer  no  pecuniary  loss  by  the 
transaction.  .  .  .  For  these  reasons,  we  think,  a  different 
rule  should  govern  the  conversion  of  a  certificate  of  stock;  and 
if  the  wrong-doer  was  at  all  times  ready  and  willing  to  trans- 
fer to  the  owner  an  equivalent  number  of  similar  shares  in  the 
same  company,  by  a  proper  and  valid  certificate,  it  would  pre- 
sent a  case  for  nominal  damages  only." 

§  62.  Not  always  required  to  redeliver  the  specific  prop- 
erty.—  It  goes  without  saying  that  it  is  not  always  expected 
that  the  bailee  will  redeliver  the  specific  thing  bailed ;  as  when 
wheat  is  taken  to  the  miller  to  be  ground  into  flour,  or  cloth 
to  the  tailor  to  be  made  into  clothing;  from  the  very  nature  of 
the  contract  it  is  understood  that  the  specific  thing  is  not  to  be 
redelivered,  but  delivery  in  its  changed  form  is  expected.  And 
so  in  case  of  property  turned  over  to  a  factor,  he  is  expected 
to  dispose  of  the  property,  but  the  property  or  money  received 
for  it  he  is  required  to  deliver  to  the  bailor.  And,  as  we  have 
seen,  where  grain  is  delivered  to  a  warehouseman,  or  an  elevator, 
while  the  same  identical  grain  is  not  to  be  returned,  grain  of  like 
quality,  quantity  and  value  is  expected  to  be  returned,  and  the 
bailee  is  liable  if  he  fails  to  do  so;  ^  and  the  courts  have  held 
that  in  case  of  wheat  delivered  to  the  miller  to  be  manufact- 
ured into  flour,  it  is  not  necessary  to  return  flour  made  from 
the  same  identical  wheat,  but  flour  may  be  delivered  made  from 
any  wheat  in  the  mill  of  equal  quality  and  kind.^ 

1  Ash  bey  v.  West,  3  Ind.  170;  Foster        2  Inglebright  v.  Hammond,  19  Ohio, 
V.  Pettebone,  7  N.  Y.  433;  Stangher    337. 
V.  Green,  10  Am.  Dec.  488. 

85 


§  G3.]  OKDINARY    BAILMENTS.  [PART    I. 

§  63.  Excuses  for  non-delivery. — Ist.  WJienthe property  has 
heen  destroyed  or  lost  without  the  fault  of  the  hailee.  As  we  have 
seen,  the  bailee  is  excused  from  liability  when  the  loss  or  de- 
struction of  the  property  is  by  the  act  of  God,  the  public  enemy, 
irresistible  force,  inevitable  accident,  or  by  fire  or  robbery,  and 
without  the  fault  or  negligence  of  the  bailee.^ 

2d.  The  delivery  of  the  property  to  the  true  owner.  If  the 
true  owner  of  the  property  should  demand  it  of  the  bailee,  he 
would  be  obliged  to  deliver  it  to  such  owner  or  subject  himself 
to  an  action  for  its  recovery,  and  if  the  property  was  delivered 
to  the  true  owner  it  would  be  a  complete  defense  to  an  action 
by  the  bailor  for  the  property  bailed ;  but  the  burden  of  prov- 
ing that  the  person  to  whom  he  delivered  the  property  was 
the  true  owner  would  be  upon  the  baileee,  and  such  a  delivery 
would  be  at  his  risk.^ 

3d.  That  he  had  heen  deprived,  of  the  property  hy  due  process  of 
law  and  therefore  cannot  redeliver  the  property  to  the  bailor. 
But  the  bailee  would  not  be  protected  by  a  process  or  seizure 
in  a  case  where  the  bailor  was  not  made  a  partv;^  and  if  he 
should  permit  the  goods  to  be  levied  on  or  attached  as  his  own, 
or  as  the  property  of  a  third  party,  he  would  not  be  exoner- 
ated, for  delivery  under  such  a  process  would  not  afford  him 
protection.  In  such  case  it  would  always  be  the  duty  of  the 
bailee  to  protect  the  interests  of  his  bailor/ 

The  bailee  is  not  required  to  determine  whether  the  judg- 
ment upon  which  the  process  is  issued  is  correct,  nor  whether 
the  statute  upon  which  the  proceedings  were  had  is  constitu- 
tional, but  he  must  at  his  peril  see  to  it  that  the  process  upon 
which  the  property  is  seized  is  a  valid  process;  that  upon  its 
face  it  is  regular,  and  that  the  court  had  jurisdiction  to  issue 
the  writ  or  process.  And  if  the  property  upon  a  defective  writ 
should  be  forcibly  taken  from  him,  be  should  at  once  institute 
proceedings  to  recover  it.^  This  principle  of  the  law  is  upon 
the  theory  that  the  person  who  takes  the  property  from  the 
bailee  without  valid  process  is  a  trespasser,  and  his  tortious 

i^?i^e,  §55.  35;  Rogers  v.  Weir,  34  N.  Y.   463: 

2  Calhoun  v.  Thompson,  56  Ala.  166;     Kelly  v.  Patchell,  5  W.  Va.  585. 
Powell  V.  Robinson,  76  Ala.  423.  5  Welles    v.    Thornton,    45    Barb. 

3  Burton  v.  Wilkerson,  18  Vt.  186.     (N.  Y.)  390. 
*  Bernard  v.  Knobbs,  3  Daly  (N.  Y), 

36 


OH.  IV.]  GENERAL   PRINCIPLES.  [§  63. 

acts  cannot  be  considered  the  act  of  the  law,  but  the  mere  act 
of  a  trespasser,  and  against  such  acts  the  bailee  is  bound  to 
protect  the  property.^ 

In  Roberts  v.  Stuyvesant'^  the  court  say:  "  It  is  no  doubt  true 
that  a  bailee  for  reward,  such  as  the  defendant  was,  may  ex- 
cuse himself  for  a  failure  to  deliver  the  property  to  the  bailor 
when  called  for,  by  showing  that  the  property  was  taken  out 
of  his  custody  under  the  authority  of  valid  legal  process,  and 
that  within  a  reasonable  time  he  gave  notice  of  that  fact  to  the 
owner.  .  .  .  But  in  this  case  the  persons  who  took  the  prop- 
erty had  no  process  that  authorized  them  to  do  so,  and  hence  the 
defendant  had  the  right  to  make  such  resistance  to  it  as  they 
would  have  had  if  the  same  parties  attempted  to  take  it  without 
any  process  whatever,  and,  if  overcome  by  superior  force,  they 
could  pursue  and  reclaim  it  by  legal  proceedings  or  otherwise 
in  the  same  manner  as  if  the  search-warrant  had  not  been  pro- 
cured. "When  property  in  the  custody  of  a  bailee  is  demanded 
by  third  persons,  under  color  of  process,  it  becomes  his  duty  to 
ascertain  whether  the  process  is  such  as  requires  him  to  sur- 
render the  property,  and  if  it  is  not,  then  it  is  his  right  and 
duty  to  refuse  and  to  offer  such  resistance  to  the  taking,  and 
adopt  such  measures  for  reclaiming  it,  if  taken,  as  a  prudent 
and  intelligent  man  would,  if  it  had  been  demanded  and  taken 
under  a  claim  of  right  to  the  property  by  another  without 
legal  process.  The  defendant  did  not  discharge  the  duty  that 
it  owed  to  the  bailor  and  owner  of  the  property  by  merely 
making  a  formal  protest  against  entering  the  vaults  where  the 
property  was.  A  person  who  would  allow  his  own  property 
to  be  taken  from  him  under  like  circumstances,  and  without 
doing  more  to  prevent  such  a  result,  or  to  repossess  himself  of 
it  when  taken,  could  scarcely  be  called  a  prudent  man.  It  fol- 
lows that  the  defendant  has  not  shown  that  the  property  was 
taken  from  its  possession  by  legal  process  so  as  to  excuse  its  loss- 
.  .  .  "While  a  bailee  who  permits  the  property  of  the  bailor 
to  be  taken  by  a  stranger  may  excuse  himself  by  showing  that 
lie  yielded  to  the  power  of  legal  process,  it  does  not  follow 
that  a  seizure  under  such  process,  after  the  bailee  has  negli- 
gently allowed  the  property  to  pass  into  the  hands  of  tres- 

J  Stephens  v.  Vaughn,  20  Am.  Dec.  21G.  2 123  N.  Y.  G5. 

37 


§  64.]  ORDINARY    BAILMENTS.  [PART    I. 

passers,  or  persons  who  have  no  right  to  it,  will  be  any  protec- 
tion to  him  in  an  action  by  the  owner.  When  the  defendant 
permitted  the  property  to  be  taken  from  its  custody,  without 
proper  diligence  and  care  to  retain  or  reclaim  it,  the  plaintiff's 
cause  of  action  accrued  and  could  not  be  defeated  by  the  ac- 
tion of  parties  seeking  to  establish  claims  against  the  owner. 
The  rule  in  such  cases  seems  to  be  that  when  a  bailee  is  sued 
by  the  owner  for  the  conversion  or  negligent  loss  of  the  prop- 
erty bailed,  it  is  not  a  defense  or  bar  to  the  action  to  show 
that  after  it  went  into  the  possession  of  others  it  was  levied 
upon  under  process  against  the  owner." 

Jith.  That  the  hailmen  tprojjerty  is  claimed  and  demanded  of  him 
hy  other  persons.  Of  course  such  a  claim  or  demand,  if  it  is 
clearly  and  to  the  knowledge  of  the  bailee  without  foundation 
and  entirely  groundless,  would  not  excuse  the  bailee ;  but  if 
there  appears  to  be  reason  for  the  claim,  and  to  resist  it  would 
subject  the  bailee  to  damages  by  way  of  litigation  or  other- 
wise, in  such  case  the  bailee  is  under  no  obligation  to  take  that 
risk  and  redeliver  the  property  to  the  bailor;  he  may  in  such 
case  require  the  contesting  claimants  to  settle  the  question  of 
who  has  the  legal  title  by  filing  a  bill  for  interpleader. 

5th.  When  excused  hy  the  terms  of  the  contract.  When  by  the 
terms  of  the  contract,  either  express  or  implied,  the  bailee  is 
excused  from  redelivering  to  the  bailor,  but  is  to  deliver  to 
some  other  person.  As,  for  example,  to  the  agent  of  the  bailor, 
or  to  a  person  designated  and  agreed  upon  b}"  the  parties. 

§  64,  Conversion  of  the  property. —  If  the  bailee  has  no 
valid  excuse  for  not  doing  so,  it  is  his  duty  at  the  termination 
and  accomplishment  of  the  bailment,  upon  the  demand  of  the 
bailor,  to  redeliver  the  property  to  him,  and  a  refusal  to  do  so 
would  be  a  conversion  of  the  subject  of  the  bailment.  If  the 
bailee  should  sell  the  subject  of  the  bailment,  or  do  any  unau- 
thorized act  with  reference  to  it,  be  guilty  of  bad  faith,  or 
fraud,  or  violate  the  bailment  contract,  the  bailor  would  have 
the  right  to  terminate  the  relation  and  demand  the  return  of  the 
property,  and  if  the  bailee  should  fail  to  redeliver  it  he  would 
be  liable  as  for  a  conversion  of  the  property,  and  the  bailor 
would  have  the  right  to  pursue  the  property  and  retake  it,  even 
from  a  honafide  purchaser,  and  upon  demand  and  refusal  could 
sustain  trover  against  such  purchaser,  for  the  reason  that  the 

38 


CII.   IV.]  GENEKAL    rRINCIPLES.  [§§   65-07. 

bailor  had  no  title  to  the  property  and  could,  therefore,  con- 
vey none,  and  the  title  of  the  bailor  would  not  be  impaired  by 
the  pretended  sale.^ 

"  The  law  is  well  settled  that  a  bailee  cannot  make  a  valid 
sale  of  property  which  is  the  subject  of  the  bailment,  even  to 
a  hmafide  purchaser  who  may  buy  in  ignoranceof  the  vendor's 
want  of  title." ^ 

§  65.  Bailee's  right  to  compensation  and  to  a  lien  upon 
the  property. —  If  the  bailee  has  bestowed  any  service  upon 
the  thing  bailed  to  him  he  is  entitled  to  compensation  by  rea- 
son of  the  express  contract;  and  if  there  is  no  such  contract, 
then  b}'^  an  implied  promise  to  pay.  And  the  law  presumes 
that  the  party  for  whom  the  services  were  rendered  will  pay 
what  the  services  were  reasonably  worth,  and  for  the  payment 
of  such  sum  the  bailee  may  have  a  lien  upon  the  property  and 
may  detain  it  until  the  amount  is  paid.  Should  the  goods  be 
taken  from  the  bailee  before  such  compensation  is  paid,  a  bailee 
who  has  a  lien  upon  the  property  may  maintain  an  action  of 
trespass  against  his  bailor.^ 

§  66.  Agreement  for  compensation,  express  or  implied, 
necessary  to  create  lien. —  If  there  is  no  agreement  or  under- 
standing that  the  bailee  is  to  receive  compensation,  and  no 
circumstances  that  would  naturally  imply  such  an  understand- 
ing, there  could  be  no  lien.  As,  for  example,  "  a  person  not 
engaged  in  the  business  of  warehousing  or  storage  who  per- 
mits another  to  deposit  a  chattel  in  an  unoccupied  room  of  his 
premises  does  not  thereby  acquire  any  lien  on  such  chattel  for 
the  value  of  the  storage."'* 

§  67.  If  no  statute  or  express  contract  creating  common- 
law  lien. —  If  the  statutes  do  not  create  a  lien  and  there  is  no 
express  contract  giving  to  the  bailee  a  lien  upon  the  property, 
then  the  bailee  will  hold  the  property  by  virtue  of  the  co  n- 
mon-law  lien  if  the  facts  are  such  as  to  create  it.  A  common- 
law  lien  has  been  defined  to  be  "a  right  to  retain  possession 
of  property  belonging  to  another  until  a  claim  of  the  party  in 

iCallionn  V.Thompson,  56  Ala.  iG6.        SBurdick  v.  Murray,  3  Vt.  302,  21 

^MetUin  v.  Wilkinson,  81  Ala.  147;     Am.  Dec;.  588. 
Lovejoy  v.  Jones,  30  N.  H.  164;  John-        *  Alt  v.  Weidenberg,  6  Bosw.  (N.  Y.) 
son  V.  Miller,  16  Ohio,  431;  Dunham     17G. 
V.  Lee,  24  Vt.  432. 

89 


§  G8.]  OEDINAKY    BAILMENTS.  [PAET    I. 

possession  against  the  owner  is  satisfied,  and  it  arises  by  oper- 
ation of  law  without  any  agreement  of  the  parties."  ^ 

§  GS.  Two  kinds  of  liens. —  The  common-law  liens  are  gen- 
erally of  two  kinds:  First,  Particular  or  specific.  Second, 
General. 

(1)  A  pai'ticular  or  specific  lien  is  one  that  attaches  to  a  par- 
ticular piece  of  personal  property  upon  which,  in  carrying  out 
the  bailment  contract,  the  bailee  has  performed  services  which 
have  bettered  the  propertj'".  This  lien  attaches  to  specific  ar- 
ticles in  the  possession  of  the  bailee. 

(2)  A  general  lien  is  a  lien  upon  the  property  generally  of 
the  bailee,  and  for  transactions  of  a  nature  analogous  to  that 
which  brought  the  particular  goods  retained  into  the  bailee's 
possession.  It  is  the  retaining  of  property,  not  only  for  serv- 
ices upon  it,  but  for  services  and  work  upon  other  articles  of 
the  bailee.  This  lien  does  not  attach  except  by  express  con- 
tract or  agreement. 

This  question  is  ably  discussed  in  Hensel  v.  Nohle^-  the  court 
saying:  "  It  cannot  be  doubted  that  a  lien  is  given  by  the  com- 
mon law  to  a  tradesman  or  artisan  who  in  the  course  of  his 
trade  or  occupation  receives  personal  property  upon  which  he 
bestows  labor;  and  his  right  to  a  lien  on  the  property  is  equally 
good  whether  there  be  an  agreement  for  a  stipulated  price  or 
only  an  implied  contract  to  pay  a  reasonable  compensation. 
It  is  equally  clear,  on  principle  as  well  as  authority,  that  when 
there  is  an  entire  contract  for  making  or  repairing  several  ar- 
ticles for  a  gross  sura,  the  tradesman  has  a  lien  on  an}^  one  or 
more  of  the  articles  in  his  possession,  not  only  for  a  propor- 
tionate part  of  the  sum  agreed  upon  for  repairing  the  whole, 
but  for  such  amount  as  he  may  be  entitled  to  for  labor  bestowed 
upon  all  the  articles  embraced  in  the  contract.  ...  If  the 
contract  was  entire,  and  the  defendants  in  pursuance  of  it  had 
not  only  repaired  one  wheel,  but  also  bestowed  labor  and  in- 
curred expense  for  the  purpose  of  repairing  the  others,  their 
lien  on  the  one  wheel  in  their  possession  was  good  for  the 
whole  amount  of  their  labor  and  expense  done  and  incurred 
in  pursuance  of  their  contract,  not  exceeding  the  sum  fixed 
by  the  agreement." 

1  Lawson,  Bailments,  55.  2  95  Pa.  St.  345. 

40 


CH.  IV.]  GENERAL    PEINCIPLES.  [§§  09-71. 

§  69.  Delivery  to  tlie  bailee  for  tlie  purpose  of  the  bail- 
ment necessary  to  the  establishment  of  the  lien. —  The  prop- 
erty must  have  been  delivered  by  the  owner  or  his  duly  au- 
thorized agent  to  the  bailee  for  the  purpose  of  the  bailment, 
and  if  it  come  to  the  possession  of  the  bailee  in  any  other  way 
he  can  have  no  lien.  The  possession  obtained  without  the  con- 
sent of  the  owner,  or  by  the  bailee  taking  the  property  with- 
out authority,  would  not  support  the  lien,  except  in  case  of 
finding  the  propertj'.  It  is  not  necessary,  however,  that  all  of 
the  property  should  be  delivered  at  one  time;  if  it  came  to  him 
by  different  parcels  and  at  different  times  it  would  be  sufficient. 
Nor  need  there  be  an  actual  delivery.  "  The  delivery  may  be 
symbolical  or  of  a  part  of  the  whole.  The  delivery  of  a  ke}^, 
where  the  goods  are  locked  up,  is  so  far  a  delivery  of  the  goods 
that  it  will  support  an  action  of  trespass  against  a  subsequent 
purchaser  who  gets  possession  of  them."  A  constructive  pos- 
session is  sufficient.^ 

§  70.  Possession  of  the  property  an  essential. —  No  lien 
can  be  created,  except  by  express  contract,  upon  property  that 
has  not  been  delivered,  and  which  is  not  in  the  possession,  act- 
ual or  constructive,  of  the  bailee.  Possession  is  an  essential  to 
a  common-law  lien.  It  attaches  only  to  property  delivered  for 
the  purpose  of  the  bailment,  and  upon  which  the  bailee  has,  in 
carrying  out  the  object  of  the  bailment,  performed  labor. 

§  71.  The  finder  of  property  may  have  lien. —  Property  that 
is  found  comes  lawfully  into  the  possession  of  the  finder,  and 
he  becomes  a  bailee  of  it,  and  for  any  labor  that  it  is  necessary 
to  bestow  upon  it  for  its  preservation,  if  performed  in  good 
faith,  the  finder  has  a  lien.  In  the  case  of  Chase  v.  Corcoran  '• 
the  property  was  a  boat  found  adrift  with  holes  in  the  bottom 
and  the  keel  nearly  demolished,  and  in  danger  of  sinking  or 
being  crushed  between  plaintiff's  boat  and  the  piles  of  a  bridge, 
unless  the  plaintiff  saved  it.  The  court  say :  "  The  claim  of  the 
plaintiff  is  therefore  to  be  regulated  by  the  common  law.  It 
is  not  a  claim  for  salvage  for  saving  the  boat  when  adrift 
and  in  danger  on  tide  water;  and  docs  not  present  the  question 
whether  the  plaintiff  had  any  lien  upon  the  boat,  or  could  re- 
cover for  salvage  services  in  an  action  at  common  law.     His 

1  Nevan  v.  Roup,  8  Iowa,  207.  2  106  Mass.  288. 

41 


§§  72,  73,]  ORDINARY    BAILMENTS.  [PART   I. 

claim  is  for  the  reasonable  expenses  of  keeping  and  repairing 
the  boat  after  he  had  brought  it  to  the  shore;  and  the  single 
question  is,  whether  a  promise  is  to  be  implied  by  law  from 
the  owner  of  a  boat,  upon  taking  it  fyom  a  person  who  has  found 
it  adrift  on  tide  water  and  brought  it  ashore,  to  pay  him  for 
the  necessary  expenses  of  preserving  the  boat  while  in  his  pos- 
session. AYe  are  of  opinion  that  such  a  promise  is  to  be  im- 
plied. The  plaintiff,  as  the  finder  of  the  boat,  had  the  lawful 
possession  of  it,  and  the  right  to  do  what  was  necessary  for  its 
preservation.  Whatever  may  have  been  the  liability  of  the 
owner  if  he  had  chosen  to  let  the  finder  retain  the  boat,  by 
taking  it  from  him  he  made  himself  liable  to  pay  the  rea- 
sonable expenses  incurred  in  keeping  and  repairing  it."  And 
it  has  been  held  that  the  finder  has  a  lien  upon  the  property 
for  a  certain  reward  offered  by  the  owner,^  but  the  reward 
must  be  certain ;  and  if  it  is  simply  the  offer  of  a  liberal  reward, 
not  stating  the  amount,  no  lien  will  attach  for  it.^ 

§  72.  Extinction  of  the  lien  —  Payment  or  tender.— The 
basis  of  the  bailee's  lien  is  his  claim  for  reasonable  compensa- 
tion ;  it  therefore  follows  that  payment  of  that  amount  by  the 
bailor,  or  tender  of  the  amount  by  the  bailor  to  the  bailee, 
Avould  extinguish  the  lien;  and  if  the  bailee  upon  such  payment 
or  tender  should  still  refuse  to  deliver  the  property,  he  would 
be  liable  in  an  action  for  conversion. 

§  73.  The  lieu  may  be  waived  — 

{a)  By  ijlacing  the  refusal  to  deliver  the  property  when  de- 
tnanded  iipon  some  other  ground.  The  claim  which  supports 
the  bailee's  lien,  as  we  have  seen,  is  his  right  to  reasonable 
compensation;  and  he  will  not  be  allowed  to  retain  the  prop- 
erty for  any  other  reason,  not  even  for  other  debts  due  and 
owino"  to  him  from  the  bailor;  and  if  he  does  not  claim  to  re- 
tain  the  property  as  security  for  his  reasonable  compensation 
for  care  of  it,  or  repairing  it,  or  performing  some  work  or  im- 
provements upon  it  which  would  entitle  him  to  a  lien,  he 
waives  his  lien  and  renders  himself  liable  to  an  action  of  re- 
plevin for  the  recovery  of  the  specific  property  or  of  trover  for 
its  value,  for  he  is  guilty  of  conversion. 

1  Weiit%vorth  v.  Day,  3  Mete.  352.         2  Wilson  v.  Gayson,  8  Gill  (Md.),  2ia 

43 


CII.  IV.]  GENERAL    PEINCIPLES.  [§  T3. 

In  the  case  of  Hamilton  v.  McLaughlin^  the  court  says:  "  The 
only  lien  which  the  defendant  claims  is  for  keeping  the  horse 
after  notice  to  the  plaintiff  and  request  to  take  it  away.  Whether 
the  evidence  Avas  sufficient  to  prove  that  he  had  such  a  lien, 
and  whether  the  instructions  asked  in  regard  to  it  were  sound, 
we  do  not  find  it  necessary  to  consider.  It  is  immaterial  that 
the  defendant  had  a  lien  if  he  waived  it  at  the  time  of  the  de- 
mand. A  claim  to  hold  the  possession  of  the  property,  and  a 
refusal  to  deliver  it  on  demand  under  and  in  assertion  of  a 
right  other  than  that  given  by  the  lien,  would  be  evidence  of 
a  conversion."  The  principle  of  estoppel  may  also  be  invoked 
in  such  a  case.  The  bailee,  having  placed  his  claim  upon  some 
other  and  different  reason  than  his  claim  for  compensation, 
would  not  be  heard  to  make  a  different  claim  in  an  action 
against  him  to  recover  the  possession  or  value  of  the  property 
detained  by  him. 

(5)  The  hailee  may  also  waive  his  lien  hy  an  agreement  to  give 
credit.  The  lien  of  the  bailee  is  further  based  upon  the  fact 
that  the  compensation  is  due  and  payable  at  the  present  time. 
If,  therefore,  the  time  of  payment  is  extended  by  the  giving 
of  credit,  the  lien  would  be  extinguished,  as  in  that  case  the 
compensation  would  be  an  indebtedness  against  the  bailee, 
payable  at  some  future  time  and  not  dependent  upon  the  lien, 
and  so  the  courts  hold  that  the  giving  of  credit  would  be  in- 
consistent with  holding  of  the  property  as  security  for  the 
payment.-  "The  general  principle  is  that  an  agreement  to 
give  credit  for  a  special  contract  for  a  particular  mode  of  pay- 
ment inconsistent  with  the  lien  is  a  waiver  of  it.  The  opera- 
tion of  a  lien  is  to  place  the  property  in  pledge  for  the  pay- 
ment of  the  debt;  and  where  the  party  agrees  to  give  time  for 
payment,  or  agrees  to  receive  payment  in  a  particular  mode 
inconsistent  with  the  existence  of  such  a  pledge,  it  is  evidence, 
if  nothing  appears  to  the  contrary,  that  he  did  not  intend  to 
rely  upon  the  pledge  of  the  goods  in  relation  to  which  the 
debt  arose  to  secure  the  payment."'^ 

And  the  lien  of  the  bailee  will  be  considered  as  waived  — 

(c)  When  he  voluntarily  parts  with  the  possession  of  the  prop- 
erty.    It  has  already  been  noticed  that  one  of  the  requisites  of 

1 145  Mass.  20.  » Stoddard  Mfg.  Co.  v.  Huntly,  8 

2  McMaster  v.  Merrick,  41  Mich.  505.    N.  H.  441. 

43 


§   7-1:.]  ORDINARY    BAILMENTS.  [pART    I. 

the  lien  of  the  bailee  is  the  possession  of  the  goods  upon  which 
he  asserts  his  lien.  Possession  being  necessary,  it  follows  that  if 
the  bailee  should  voluntarily  part  with  it  and  allow  the  prop- 
erty to  go  beyond  his  control,  his  lien  would  be  lost,  and  it 
would  make  no  difference  if  the  goods  were  delivered  to  a  third 
party  with  an  agreement  that  the  lien  was  to  continue,  unless, 
perhaps,  the  goods  were  placed  in  the  hands  of  a  third  party 
who  was  under  the  control  of  the  bailee,  and  so  a  wrongful 
sale  or  pledge  of  the  property  would  destroy  the  lien  of  the 
bailee.  It  has,  however,  been  held  that  a  lien  acquired  by  a 
partnership  will  not  be  lost  by  a  dissolution  of  the  partnership, 
or  by  the  assignment  of  the  interest  of  one  of  the  partners  to 
the  other.  This  does  not  so  much  depend  upon  the  fact  that 
the  bailee  has  sold  or  pledged  the  property;  the  decisive  mat- 
ter is  that  he  has  parted  with  the  possession.  "The  conduct 
of  the  bailee  in  parting  with  his  possession  is  inconsistent 
with  the  preservation  of  his  lien,  and  where  that  is  proved, 
the  presumption  is  that  he  has  waived  or  abandoned  it,  un- 
less his  conduct  in  so  doing  is  satisfactorily  explained."  ^  And 
there  could  be  no  explanation  that  would  avoid  the  extin- 
guishment of  the  lien  if  the  rights  of  third  parties  had  inter- 
vened. 

§  74.  Lien  once  lost  cannot  be  revived. —  The  lien  is  sup- 
ported and  rests  upon  the  fact  of  continued  possession ;  that 
the  property  is  retained  in  the  hands  of  the  bailee  as  security 
for  his  compensation.  This  possession  once  relinquished,  the 
lien  is  necessarily  at  an  end,  and  it  could  not  be  revived  byre- 
possessing  himself  of  the  property.  The  parting  with  the 
possession  raises  the  presumption  that  he  thereby  waives  or 
abandons  his  lien.^  If  however,  the  bailor  should  obtain  pos- 
session of  the  property  by  fraud  or  force,  or  by  any  wrongful 
recovery  of  the  same,  the  bailee  would  not  forfeit  his  lien,  for 
the  law  would  not  permit  the  bailor  to  take  advantage  of  his 
own  wrong. 

In  Bruleyv.  Ross  et  al.?  it  was  held  that  where  property  had 
been  pledged  as  security  for  a  debt  and  the  pledgor  obtained 
possession  thereof  for  a  special  purpose,  and  with  the  consent 
of  the  pledgee  thereupon  took  the  property  out  of  the  count}^ 

1  Robinson  v.  Lariby,  63  Me.  116.  2  ibid.  3  57  Iowa,  651. 

44 


OH.  rV.]  GENERAL    PRINCIPLES.  [§§  75,  76. 

the  pledgee  could  not  be  deemed  to  have  released  his  lien 
therein,  if  the  evidence  showed  that  the  pledgor  obtained  the 
possession  of  the  thing  pledged  with  a  felonious  design  to  de- 
prive the  pledgee  of  his  security. 

And  in  Walcott  v.  Keith  ^  it  was  held  that  when  possession,  so 
essential  not  only  to  the  creation  but  also  to  the  continuance 
of  the  lien  created,  is  obtained  by  the  wrongful  act  of  the 
pledgor  and  without  the  assent  of  the  pledgee,  it  will  not  work 
a  forfeiture  of  the  lien,  nor  would  it  defeat  the  bailee's  right  of 
action  to  recover  damages  for  an  injury  to  or  conversion  of  the 
pledge. 

§  75.  Riglit  of  tlie  bailor  to  compensation, —  The  right  of 
the  bailor  to  compensation  may  arise  from  express  contract 
or  by  implication.  If  the  circumstances  were  such  that  it 
would  reasonably  be  presumed  that  the  bailee  was  to  pay  the 
bailor  compensation  for  the  use  of  the  property,  a  contract  to 
make  such  payment  would  arise  by  implication;  and  it  has  been 
held  that  the  fact  that  the  Imilment  w^as  made  under  the  mutual 
expectation  that  the  bailee  would  purchase  the  chattel  did  not 
raise  a  presumption  that  the  use  was  gratuitously  given."^ 

§  76.  Enforcement  of  the  lien  of  bailee. —  The  bailee  can- 
not enforce  or  foreclose  his  lien  by  a  sale  of  the  property;  his 
lien  is  a  common-law  lien,  in  the  absence  of  a  statute  upon  the 
subject,  and  it  only  gives  to  him  the  right  to  hold  the  property 
as  security  for  his  debt  against  the  bailor.  This  has,  however, 
been  regulated  in  some  of  the  states  by  statute  permitting  a 
public  sale  of  the  property,  after  proper  notice  of  the  time  and 
place,  to  satisfy  the  amount  of  the  lien. 

1 33  N.  H.  196.  2  Rider  v.  Union  India  Rubber  Co.,  38  N.  J.  379. 

45 


CHAPTER  Y. 
TERMINATION  OF  THE  BAILMENT. 


§  77.  The  several  ways. 

78.  By  expiration  of  the  time  for 

which     the     property     was 
bailed. 

79.  By  reason  of  tlie  accomplish- 

ment of  the  object. 


§  80.  By  act  of  parties. 
81    By  operation  of  law. 

82.  By  destruction  of  the  bailed 

property. 

83.  By  deatli  of  the  bailea 

84  By  incompetency  of  the  parties. 


§  77.  The  several  ways. —  The  several  circumstances  and 
conditions  that  will  terminate  the  bailment  relation  have  been 
more  or  less  discussed  in  the  previous  pages;  our  intention  now 
is  to  classify  and  briefly  discuss  them. 

Bailments  may  be  terminated  in  the  following  ways: 

1st.  By  expiration  of  the  time  for  which  the  property  was 
bailed. 

2d.  By  reason  of  the  accomplishment  of  the  object. 
3d.  By  acts  of  the  parties. 

4th.  By  operation  of  law. 

5th.  By  destruction  of  the  property. 

6th.  If  bailment  is  gratuitous,  on  death  of  bailee. 

Tth.  By  incompetency  of  the  parties. 

§  78.  (1st)  By  expiration  ofthe  time  for  which  the  property 
Avas  bailed. —  This  needs  no  discussion.  If  the  contract  of  bail- 
ment is  limited  as  to  time,  it  goes  without  saying  that  when 
that  time  expires  the  bailment  will  be  at  an  end,  there  being 
no  longer  any  agreement,  express  or  implied,  to  support  the 
bailment;  provided,  always,  the  parties  act  upon  it  by  a  re- 
delivery of  the  property,  or  a  sale,  or  a  bailment  of  it. 

§  79.  (2(1)  By  reason  ofthe  accomplishment  ofthe  object. — 
When  the  object  of  the  bailment  has  been  accomplished  there 
is  no  longer  any  reason  for  continuing  the  relation,  and  either 
party  could  bring  it  to  an  end ;  the  bailor  by  demanding  the 
return  of  the  bailed  goods,  or  the  bailee  by  tendering  back  the 
chattels  in  his  possession  as  bailee.  The  contract  would  be  ex- 
ecuted and  the  relation  of  bailor  and  bailee  could  at  once  be 

46 


CII.  v.]  TERMINATION    OF    BAILMENT.  [§  80. 

ended.  What  we  have  said  is,  of  course,  presuming  that  the 
parties  have  no  legal  excuse  for  not  redelivering  the  property. 
"  It  is  obvious  that  a  bailee,  whatever  the  character  of  the  bail- 
ment may  be,  when  its  purpose  has  been  fully  satisfied  and 
performed,  is  bound,  upon  request,  to  redeliver  the  thing  bailed 
to  its  lawful  owner.  This  is  necessaril}^  implied  in  all  cases 
from  the  nature  of  the  contract  of  payment.  The  authorities 
are  uniform  to  the  effect  that  such  redelivery  may  be  excused 
in  the  case  of  a  bailment,  mutually  beneficial  to  both  parties, 
by  proof  that  the  deposit  has  been  lost  or  destroyed  without 
negligence,  or  want  of  such  care  on  the  part  of  a  bailee  as 
prudent  men  under  similar  circumstances  commonly  take  of 
their  own  goods.  In  case  of  gratuitous  bailments,  however, 
the  bailee  is  liable  only  when  chargeable  with  gross  neglect. 
It  necessarily  follows  from  the  nature  of  the  obligation  and 
.the  refusal  to  return  the  property,  that  the  burden  of  showing 
the  circumstances  of  the  loss  rests  upon  the  bailee,  and,  unless 
the  evidence  shows  the  exercise  of  due  care  by  him  according 
to  the  nature  of  the  payment,  he  will  be  held  responsible  for 
the  breach  of  his  contract  to  return  the  property  bailed."  ^ 

§  80.  (3(1)  By  act  of  parties. — 

{a)  On  demand  of  hailor.  If  the  bailment  is  gratuitous,  as  a 
general  rule  the  bailee  has  no  right  to  the  possession  of  the 
bailed  property  as  against  the  bailor.  In  such  case  there  is  no 
consideration  moving  between  the  parties  upon  which  a  con- 
tract for  use  or  possession  can  be  implied  for  a  greater  time 
than  the  bailor  may  choose  to  allow  the  bailee  to  remain  in  the 
use  or  possession  of  the  property.  But  while  it  is  true  that  in 
such  kind  of  bailments  the  bailor  may  revoke  the  bailment  at 
his  will,  he  cannot  be  unreasonable;  as,  for  example,  when 
the  object  of  the  bailment  is  but  partially  accomplished  and 
to  at  once  terminate  it  would  be  to  impose  upon  the  bailee  an 
injury  more  or  less  serious.  As,  for  example,  where-  "The 
owner  of  a  pair  of  horses  lends  them  to  his  neighbor  to  carry 
a  load  of  provisions  to  a  particular  market,  he  cannot  on  the 
way  meet  him  and  demand  the  immediate  possession  of  the 
team,  leaving  the  borrower  to  sustain  the  injury  resulting  from 
such  an  abrupt  and  unexpected  termination  of  the  loan."     Such 

lOuderkirk  V.  C.N.  Bank,  HON.  Y.  2Lawson  on  Bailments,  GO;  Ed- 
263;  and  see  cases  cited.  wards,  Bailments,  144. 

47 


§  so.]  ORDIISrARY    BAILMENTS.  [PART    I. 

a  demand  would  be  unreasonable;  if  the  demand  is  reason- 
able, however,  the  bailor  may  terminate  the  bailment  by  such 
demand.  The  bailments  that  can  be  thus  terminated  on  de- 
mand by  the  bailor  and  at  his  option  are  mandatum  or  dejyos- 
itum. 

{h)  Bailor  may  terminate^  lohen. —  And  when  by  the  agree- 
ment creating  the  relation  no  time  is  fixed  for  the  accomplish- 
ment of  the  bailment,  the  bailor  may  terminate  by  a  demand 
of  the  property,  and  if  the  bailee  does  not  return  it  within  a 
reasonable  time  the  bailment  will  be  considered  at  an  end. 
What  under  all  the  circumstances  would  be  a  reasonable  time 
is  a  question  for  the  jury.' 

(c)  Where  the  hailee  agrees  to  return  the  iwojperty  in  a  fixed 
time  and  fails,  the  bailor,  for  the  purpose  of  terminating  the 
relation,  need  not  make  any  demand;  the  failure  to  so  rede- 
liver the  property  terminates  the  bailment,  and  the  bailee  will 
be  considered  as  having  converted  the  property.^ 

id)  Wlien  hy  agreement  the  hailor  is  to  return  the  hailed  prop- 
erty at  a  partictdar  place  and  fails.  If  by  the  agreement 
the  bailor  is  to  return  the  subject  of  the  bailment  at  a  particu- 
lar place,  and  makes  a  general  refusal  to  redeliver  the  goods, 
the  bailor  may  consider  the  bailment  relation  at  an  end,  and 
is  entitled  to  at  once  proceed  to  recover  the  property  as  though 
it  had  been  converted  by  the  bailee.  And  the  fact  that  a 
demand  for  the  property  was  made  at  a  different  place  will 
make  no  difference.^ 

{e)  ^yhen  declaratio?i  of  ownership  hy  hailee  not  enough.  It 
has  been  held,  however,  that  a  declaration  made  by  the  bailee 
to  the  bailor  that  he  is  the  owner  of  the  goods  would  not  be 
sufficient  to  found  an  action  by  the  bailor  for  conversion,  un- 
less it  were  coupled  with  some  action  showing  a  determina- 
tion to  deny  the  bailor's  title  to  the  property;  some  unequivo- 
cal act  showing  that  he  is  holding  the  property  adverse  to 
the  bailor.* 

if)  By  sale,  pledge,  or  act  of  oivnership  hy  hailee.  If  the 
bailee  should  exercise  any  act  of  ownership  adverse  to  the 

1  Cobb  V.  Wallace,  5  Coldw.  539.  3  Dunlap  v.  Hunting,  4  Den.  (N,  Y.) 

2Lay  V.  Lawson,  23  Ala.  377;  Clapp    643. 
V.  Nelson,  12  Tex.  370.  4  Green    v.    Harris,  3    N.   C.   210; 

Knight  V.  Bell,  22  Ala.  198. 
48 


CH.   v.]  TERMINATION    OF    BAILMENT.  [§§    81,  82. 

bailor,  as  by  sale  or  pledge  of  the  bailed  property,  the  bailor 
can  at  once  terminate  the  bailment  and  demand  and  recover 
the  possession  of  his  property.^ 

ig)  Ahuse  and  injury  of  property.  It  is  incumbent  upon  the 
bailee  to' exercise  good  faith  and  deal  fairly  with  the  bailor; 
and  so  it  follows  that  for  a  violation  of  this  duty  the  bailor  can 
terminate  the  bailment  relation.  Is  has  been  held,  for  exam- 
ple, that  "one  who  hires  a  horse  is  liable  in  trover  for  wilful 
and  immoderate  fast  driving  by  which  the  horse  is  injured."^ 

(A)  The  hailee  may  terminate  the  hailment.  In  case  of  gra- 
tuitous bailments  for  the  sole  benefit  of  the  bailor  (a  connno- 
datum)^  the  bailee  may  terminate  the  bailment  at  any  time  by 
returning  the  bailed  property  to  the  bailor.  And  the  deposit- 
ary in  a  depositum  bailment  may,  upon  reasonable  notice  to 
the  bailor,  terminate  the  bailment  by  redelivering  the  deposit.' 

(^)  //'  hailment  for  tenefit  of  hoth  parties.  In  such  kind  of 
bailments  there  is  a  contract  supported  by  a  consideration, 
and,  unless  there  has  been  some  breach  of  the  terms  of  the  con- 
tract, the  bailment  cannot  be  terminated  by  the  act  of  the  par- 
ties; h\xt  bad  faith  or  fraud,  dishonest  dealing,  or  failure  to 
execute  the  trust,  or  for  the  causes  already  enumerated  —  as,  for 
example,  an  assumed  sale  or  pledge  of  the  property  bailed  by 
the  bailee,  an  unauthorized  use  of  the  property  resulting  in  its 
injury,  or  any  unwarranted  action  inconsistent  with  the  con- 
tract of  bailment  —  would  furnish  good  cause  for  either  party 
injured  to  terminate  the  bailment;  but  in  such  cases  there 
should  be  notice  given,  by  the  party  seeking  to  so  terminate  it, 
to  the  other  party,  and  such  notice  should  be  reasonable. 

§  81.  (4tli)  By  operation  of  law. —  As,  for  example,  when 
the  parties  consent  to  the  termination  of  the  bailment,  or  when 
the  bailee,  by  purchase  or  otherwise,  becomes  the  owner  of  the 
subject  of  the  bailment. 

§  82.  (5th)  By  destruction  of  the  bailed  property. —  When 
the  subject  of  the  bailment  is  destroyed  there  is  no  longer  any- 

1  Story,  Bailments,  sec.  413;  Sar-  2  Wentworth  v.  McDuffie,  48  N.  H. 
gent  V.  Gile,  8  N.  H.  325;  Baily  v.     402. 

Colby,  34  N.  H.  29;  King  v.  Bates,  57        3  Roulston  v.  McClelland,  2  E.  D. 
N.  H.  446;  Swift  v.  Mosley,  10  Vt.     Smith  (N.  Y.),  GO. 
208;  Dunham    v.   Lee,    24  Vt.   432; 
Crump  V.  Mitchell,  34  Miss.  449. 

4  49 


§  83.]  ORDINARY    BAILMENTS.  [PART    I. 

thing  upon  which  the  bailment  can  act,  and  it  must  of  necessity 
be  terminated.  The  liabilities  of  the  parties,  however,  would 
be  subject  to  the  rules  heretofore  discussed. 

§83.  (6th)  The  death  of  the  bailee. —  In  case  of  a  gratuitous 
bailment,  the  death  of  the  bailee  would  terminate  the  bailment.^ 

In  case  of  non-gratuitous  bailments  the  authorities  seem  to 
be  somewhat  at  variance.  Mr.  Schouler  says:  "Whether  the 
death  of  either  party  will  operate  a  dissolution  of  the  bailment 
is  not  definitely  settled ;  but  such  seems  not  to  be  the  general 
result  when  the  party  deceased  had  hired  for  other  than  for  a 
strictly  personal  use."^ 

Mr.  Lawson  says :  "  The  death  of  the  bailee  is  said  to  terminate 
the  bailment,  and  generally  such  an  event  would  give  the  bailor 
a  right  to  at  once  reclaim  his  property."  "It  seems, however, 
that  when  the  bailment  has  been  partly  executed,  the  personal 
representatives  of  the  bailee,  if  they  can  do  so,  may  be  required 
to  complete  it.  Where  the  bailor  dies,  the  authority  or  trust 
reposed  in  the  bailee  is  ended;  the  same  as  in  any  agency  the 
power  is  revoked  by  the  death  of  the  principal."  ^  Mr.  Hale 
says:  "  The  bailment  relation  is  in  many  respects  one  of  princi- 
pal and  agent.  This  is  especially  apparent  in  considering  the 
effect  of  death  upon  the  relation.  The  death  of  the  bailor  or 
principal  at  once  operates  as  revocation  of  authority."* 

The  effect  of  the  death  of  the  parties  upon  the  bailment,  it 
would  seem,  must  depend  very  largel}^  upon  the  contract  creating 
the  relation.  If  the  relation  is  a  mutual-benefit  bailment,  which 
does  not  depend  upon  the  personal  or  professional  skill  of  a  de- 
ceased bailee,  but  is  such  a  bailment  that  the  personal  represent- 
atives of  the  deceased  could  legally  claim  could  be  carried  out 
by  them,  and  was  valuable  to  the  estate,  in  such  a  case  there  can 
be  no  doubt  that  it  would  not  be  terminated  by  the  death  of 
the  bailee,  and  especially  would  this  be  true  if  the  contract 
had  been  partially  executed.  But  if  the  bailed  property  had 
been  intrusted  to  the  bailee  because  of  his  personal  or  peculiar 
ability  to  perform  the  bailment,  or  if  this  was  the  reason  for 
the  bailment  in  the  mind  of  the  bailor,  and  was  so  expressed ; 
or,  if  the  bailee  was  selected  because  of  professional  skill  which 

'Smiley  v.  Allen,  13  Allen  (Mass.),        ^Lawson's  Bailments,  29. 
465.  ■*  Hale's  Bailments,  76. 

-Schouler's  Bailments,  sec.  156. 

50 


OH.  v.]  TERMINATION    OF    BAILMENT.  [§  84. 

the  bailor  was  desirous  of  employing,  then  in  such  a  case,  even 
though  the  bailment  Avas  a  benefit  bailment,  or  a  bailment  for 
hire,  the  death  of  the  bailee  would  terminate  the  bailment,  at 
the  option  of  the  bailor.  If  such  a  bailment  had  been  per- 
formed to  the  extent  of  completing  the  service  or  work  to 
be  performed  upon  it  for  the  betterment  of  the  property,  the 
lien  of  the  deceased  bailee  would  attach  in  the  hands  of  his 
personal  representatives,  and  the  bailor  could  not  terminate 
the  bailment  to  the  extent  of  dispossessing  them  of  the  prop- 
erty and  thus  of  the  lien.  Discussing  this  question,  Judge 
Story  in  his  work  on  Bailments  says :  ^  "  How  far  the  lender 
may  revoke  the  loan  at  his  mere  pleasure  has  been  already  in- 
cidentally noticed,  and  it  seems  that  by  the  common  law  all 
such  loans  are  deemed  precarious,  and  during  the  mere  will 
and  pleasure  of  the  lender.  But  there  are  also  revocations  im- 
plied by  law,  as  by  a  change  of  the  state  or  condition  of  the 
parties.  Thus,  the  death  of  the  borrower  will  nominally  oper- 
ate as  a  revocation  of  the  loan,  for  it  is  presumed  to  be  a 
matter  of  personal  confidence  and  benefit.  But  if  such  a  pre- 
sumption does  not  arise  from  the  nature  and  circumstances  of 
the  loan,  the  Boman  law  deems  the  death  of  the  party  no 
revocation.  On  the  other  hand,  the  death  of  the  lender  does 
not  by  the  Boman  law  operate  as  a  revocation  of  the  loan  un- 
less it  is  of  the  nature  called  precarious  or  during  pleasure. 
The  general  analogy  of  the  common  law  would  lead  us  to  the 
conclusion  that  the  death  of  either  party  would  amount  to  the 
revocation  of  a  gratuitous  loan.  Thus,  if  a  woman  after  a  bail- 
ment made  by  her,  or  to  her,  contracts  marriage,  that  operates 
as  a  termination  or  revocation  of  the  bailment." 

§84.  (7th)  By  incompetency  of  the  parties. —  If  either  party 
should  become  incompetent  to  the  extent  that  it  would  render 
him  unfit  to  carry  out  the  object  of  the  bailment,  the  bailment 
would  terminate;  as,  for  example,  insanity  of  the  bailee,  or 
habitual  drunkenness,  if  to  the  extent  that  it  would  affect  the 
rights  or  duties  of  the  parties.  The  determination  of  this  ques- 
tion would  of  course  depend  largely  upon  the  nature  of  the 
bailment  and  the  condition  of  the  parties.  It  would  be  a  ques- 
tion of  fact  for  the  jury  under  proper  instructions  from  the 

1  Story,  Bailments,  sec.  277. 
51 


§    84.]  OKDINARY    BAILMENTS.  [PART    I. 

court.  In  case  of  a  mandate,  generally,  any  change  of  the  par- 
ties, as  by  marriage,^  or  appointment  of  a  guardian;^  and  it  has 
been  held  that  bankruptcy  of  either  party  would  terminate  the 
bailment.'' 

1  Story,   Agency,   488-500;    Story,        sparker   v.   Smith,   16  East,  382; 
Bailment,  sec.  206.  Minet  v.  Forester,  4  Taunt.  541 ;  Ex 

■■2  Story,  Bailment,  481.  parte  Newhall,  2  Story,  360. 

52 


CHAPTER  YI. 


LIABILITY  ^OF  THE    BAILOR    AND    BAILEE   WHEN    THE    BAIL- 
MENT IS  FOR  THE  SOLE  BENEFIT  OF  THE  BAILOR. 


85.  These  bailments  of  two  kinds. 

86.  Mandatuvi. 

87.  Depositum. 

88.  Use  of  the  deposit. 

89.  Special,  not  general  deposit. 

90.  ^wast-deposits. 

91.  Subject  limited. 

92.  Distinction  between  depositum 

and  viandatum. 

93.  A  contract  relation. 

94.  The  bailee's  liability. 


g  95.  Authorities  not  entirely  har- 
monious. 

96.  For  the  sole  benefit  of  bailor. 

97.  Even  indirect  benefit  would 

change  the  class  of  bailment. 

98.  Notice  of  facts  requiring  spe- 

cial care. 

99.  Failure  to  obey  instruction  or 

the  terms  of  the  bailment. 
100.  Termination  of  the  relation 
and  bailor's  remedies. 


§  85.  These  l)ailnients  of  two  kinds. —  Bailments  of  this 

class  are  of  two  kinds:  (1)  Mandatum  and  (2)  Depositum. 

§  86.  (1)  Mandatum. —  A  delivery  of  goods  for  the  purpose 
of  having  some  service,  work  or  labor  performed  upon  or 
about  them  by  the  bailee  without  recompense.^  The  bailor  is 
called  the  mandator  and  the  bailee  the  mandatary. 

Mandatum  was  a  word  employed  by  Lord  Holt  in  the  cele- 
brated case  of  Coggs  v.  Bernard?  Its  applicability  has,  how- 
ever, by  some  of  the  authors  been  questioned.  It  is  said  to  be 
"  a  term  apparently  derived  from  the  fiction  of  giving  one's 
right  hand  as  symbolical  of  delivery  to  another  of  authority  to 
act;"  it  meant  simply  to  constitute  a  gratuitous  agency  some- 
what broader  than  we  use  in  the  law  of  bailments,  if  indeed 
it  is  applicable  at  all.  Kvl  unpaid  carrier  was  said  to  be  a  man- 
datary, and  so  was  an  unpaid  oral  messenger.  It  was  not  con- 
fined to  personalty,  nor  was  it  necessarily  occupied  with  the 
property  at  all;  but  in  the  sense  we  use  it,  it  is  the  gratuitous 
doing  of  some  act  upon  or  about  the  subject  of  the  bailment 
l)y  the  bailee.  The  bailment  of  a  thing  upon  which  the  bailee 
is  to  do  some  work  gratuitously,  and  return  it  to  the  bailor,  or 
gratuitous!}''  to  carry  the  thing  from  place  to  place,  seems  to 


1  Story's  Bailments,  sec.  137. 


2  2  Ld.  Raymond,  909. 


53 


§§  87,  88.]  ORDINARY   BAILMENTS.  [PART    I. 

cover  the  more  modern  idea  of  this  kind  of  a  bailment.  Chan- 
cellor Kent  defines  it  to  be,  "  when  one  undertakes  without  a 
recompense  to  do  some  act  for  the  other  in  respect  to  the  thing 
bailed." ' 

To  create  a  mandate,  three  things  are  necessary.  First,  that 
there  should  exist  something  that  should  be  the  subject  of  the 
mandate;  second,  that  it  should  be  done  gratuitously;  and 
third,  that  the  parties  should  voluntarily  intend  to  enter  into 
the  contract.  There  is  no  particular  form  of  entering  into  the 
contract.  It  may  be  verbal  or  in  writing,  or  by  implication,'- 
and,  as  we  have  seen,  the  contract  may  be  terminated  in  sev- 
eral ways. 

§  87.  (2)  Depositum. —  Usually  defined  to  be  "a naked  bail- 
ment of  goods  to  be  kept  by  the  bailee  for  the  bailor  without 
reward,  and  returned  when  he  shall  require  it."*  Pothier 
defines  it  to  be  "a  contract  by  which  one  of  the  contracting 
parties  gives  a  thing  to  another  to  keep,  who  is  to  do  so  gra- 
tuitously, and  obliges  himself  to  return  it  when  he  shall  be 
requested."  The  depositary  of  a  special  deposit  is  bound  to  re- 
turn the  specific  article  deposited,  as  is  said,  to  return  the  thing 
in  individuo,  and  in  the  same  state  in  which  it  was  received. 
And  not  only  is  he  bound  to  return  the  individual  thing  de- 
posited, but  as  well  any  increase  or  profits  that  may  have  ac- 
crued from  it.  As,  for  example,  if  an  animal,  any  offspring 
that  the  animal  may  have  born ;  if  bonds,  any  interest  that  may 
have  accumulated  from  it.* 

§  88.  Use  of  the  deposit. —  And  further,  by  way  of  bearing 
on  the  definition,  it  may  be  said  that  as  a  general  rule  the  de- 
positary has  no  right  to  use  the  thing  deposited  with  him, 
qualified,  however,  by  the  rules  already  discussed ;  if  the  use  of 
the  thing  is  necessary  for  its  preservation,  it  would  be  his  duty 
to  use  it.  As  to  this  it  has  been  said  that  "  the  best  general 
rule  on  the  subject  is  to  consider  whether  there  may  or  may 
not  be  an  implied  consent  on  the  part  of  the  owner  to  the  use. 
If  the  use  would  be  for  the  benefit  of  the  deposit,  the  assent  of 
the  owner  may  well  be  presumed;  if  the  use  would  be  indiffer- 

1 2  Kent's  Com.  443.  3  Jones,  Bailments,  36,  117;  Story's 

2  Story's  Bailments,  sec.  160.  Bailments,  sec.  41. 

4  Story's  Bailments,  sec.  99. 
54 


CH.  VI.]  FOR    SOLE    BENEFIT  OF    BAILOR.  [§§  8li-93. 

ent,  and  other  circumstances  do  not  incline  either  way,  the  use 
may  be  deemed  not  allowable.^ 

§  89.  Special,  not  general  deposit.  —  From  what  has  been 
said  it  will  be  seen  that  the  depositum  refers  to  what  is  deemed 
and  generally  called  a  specific  deposit,  as  the  depositing  of 
a  special  package  in  a  bank,  and  not  to  the  deposit  of  money 
or  property  that  may  be  returned  in  like  kind  and  of  equal 
quantity  and  value;  as  general  deposits  of  money  in  a  bank, 
which  may  be  paid  back  in  an}^  other  money  of  equal  value. 

§  90.  Qnasi-deposits. — The  so-called  quasi-deposit  may  also 
be  included  here.  It  is  where  one  comes  lawfully  into  the 
possession  of  the  thing  b}'^  finding.  The  contract  relation  is  at 
once  implied  if  he  takes  the  thing  into  his  possession.  In  a 
sense  the  finder  is  not  a  voluntary  depositary,  and  yet  he  is  if 
he  takes  possession  and  control  of  the  found  property,  and  he 
will  be  governed  by  the  same  rules  of  laAv  as  to  liability. 

§  91.  Subject  limited.— It  may  be  said,  then,  that  in  discuss- 
ing the  liability  of  the  depositary  in  this  class  of  bailments, 
we  are  limited  to  the  possessor  of  special  deposits  where  the 
specific  property  or  thing  is  to  be  returned,  and  to  that  which 
has  been  called  f^^«as^-deposit. 

§  92.  Distinction  between  depositnm  and  mandatnm. — 
The  difference  between  a  deposit  and  a  mandate  is  apparent 
from  what  has  been  said.  Both  are  gratuitous  bailments,  and 
so  far  as  care  and  diligence  are  required,  or  liability  for  negli- 
gence created,  both  stand  upon  the  same  footing,  as  a  general 
rule;  yet  in  the  latter,  perhaps,  the  circumstances  might  in- 
volve a  relatively  different  diligence,  and  render  bailee  liable 
for  a  relatively  different  negligence,  because  of  the  additional 
duties  required.  A  deposit,  as  we  have  seen,  is  a  naked  gratu- 
itous keeping  of  the  thing  —  a  gratuitous  care  and  custody  of 
the  bailed  property  by  the  bailee  for  the  sole  benefit  of  the 
bailor,  and  a  returning  of  the  specific  thing;  while  a  mandate 
is  more  than  this:  it  involves  not  only  custody  and  care  of  the 
thing,  but  it  involves,  as  well,  labor  and  service  as  to  the  thing. 
Custody,  as  has  been  said  in  case  of  a  mandate,  "  is  merely 
accessorial." 

§  93.  A  contract  relation. —  Whether  mandatum  or  depos- 
itum,  the  relation  is  created  by  contract  either  express  or  im- 

1  Jones,  Bailments,  80,  81;  Story's  Bailments,  sec.  90. 


§  94.]  OKDIXARY    BAILMENTS.  [PART    I. 

plied.  And  so  the  parties  must  be  governed  entirely  by  the 
contract  by  which  the  relation  is  created,  as  to  their  care  and 
custody,  in  performing  the  service  as  well  as  returning  the 
property,  and  as  to  their  liability  in  case  of  failure  to  carry  out 
the  contractual  relation.  And  this  applies  as  well  to  property 
that  is  found;  for  while  it  is  true  that  the  finder  is  created  a 
bailee  by  operation  of  law  in  such  case,  the  moment  he  takes 
the  thing  found  into  his  possession,  there  is  an  implied  contract 
that  fixes  his  status  and  regulates  his  liability. 

§  94.  The  bailee's  liability. —  The  bailment  is  for  the  sole 
benefit  of  the  bailor,  and  so,  following  the  general  rule  of  lia- 
bility generally  conceded,  the  bailee  is  required  to  exercise 
slight  diligence,  and  is  liable  only  for  gross  negligence.  It  may 
be  somewhat  difficult  in  all  cases  to  apply  this  rule,  for  the 
reason  that  it  is  often  difficult  to  determine  just  what  slight 
diligence  or  gross  negligence  is.  No  fixed  rule  can  be  applied : 
the  circumstances  of  the  particular  case  can  only  settle  the 
question;  but  with  but  one  exception,  which  will  be  herein- 
after noted,  it  is  a  question  of  fact  for  the  jury  to  determine. 

It  has  been  held  that  "a  mandatary,  or  bailee  who  under- 
takes without  reward  to  take  care  of  the  pledge,  or  perform 
any  duty  or  labor,  is  required  to  use  in  its  performance  such 
care  as  men  of  common  prudence,  however  inattentive,  ordi- 
narily take  of  their  own  affairs,  and  they  will  be  liable  only 
for  bad  faith,  or  gross  negligence,  which  is  an  omission  of  that 
degree  of  care."  ^  And  in  the  supreme  court  of  the  United 
States  in  a  comparatively  recent  case  it  was  said :  "  Such 
bailees  are  bound  to  exercise  such  reasonable  care  as  men  of 
common  prudence  usually  bestow  for  the  protection  of  their 
own  property  of  a  similar  character;  and  that  the  exercise  of 
reasonable  care  is  in  all  such  cases  the  dictates  of  good  faith ; 
and  that  the  care  usually  and  generally  deemed  necessary  in 
the  community  for  the  security  of  similar  property  under  like 
conditions  would  be  required  by  the  bailee  in  such  cases,  but 
nothing  more."  Gross  negligence,  as  applied  to  gratuitous  bail- 
ees, is  defined  in  the  same  case  to  be  "nothing  more  than  a 
failure  to  bestow  the  care  which  the  property  in  its  situation 
demands;"  and  the  court  say  further:  "The  omission  of  the 

1  Kelly  V.  Kahn,  17  111.  170. 
56 


CH.  VI.]  FOR   SOLE    BENEFIT    OF    BAILOK.  [§§  95-97. 

reasonable  care  required  is  the  negligence  which  creates  the 
liability,  and  whether  this  existed  is  a  question  of  fact  for  the 
jury  to  determine."  ^ 

§  95.  Authorities  not  entirely  harnionions. —  As  to  this  lia- 
bility, and,  more  properly  speaking,  the  manner  of  arriving  at 
it,  the  modern  authorities  do  not  seem  to  be  entirely  harmoni- 
ous. There  are  those  who  would  entirely  ignore  the  degree  of 
diligence  and  negligence,  and  base  the  question  of  liabilit}'' 
upon  what  they  assert  to  be  more  philosophical,  and  contend 
that  the  degree  of  care  is  fixed  by  the  mutual  understanding 
of  the  bailment  purpose,  and  that  any  neglect  of  the  fairly  un- 
derstood terms  of  the  contract  would  render  the  bailee  liable 
for  any  injury  that  resulted  therefrom.  It  may,  however,  be 
said  that  the  weight  of  authority  is  for  the  upholding  of  the 
standard  of  relative  diligence,  and  the  courts  are  continually 
relying  upon  these  old  rules  and  fixing  liability  by  determin- 
ing the  degrees  of  diligence  and  negligence  as  laid  down  by 
the  earlier  writers. 

§  96,  For  the  sole  benefit  of  the  bailor.— The  bailment 
must  be  for  the  sole  benefit  of  the  bailor;  the  slightest  benefit 
to  the  bailee  would  place  the  bailment  in  another  class,  and 
require  a  greater  degree  of  diligence  to  be  exercised  on  the 
part  of  the  bailee.  It  is  for  this  reason  that  the  deposltum  or 
this  class  of  bailments  does  not  include  the  general  deposit  of 
money  in  a  bank,  and  can  only  include  the  special  deposit  of 
the  thing;  because  in  the  former  the  bank  bailee,  from  the  very 
nature  of  the  bailment,  has  the  right  to  use  the  deposited  money 
in  its  business  and  thus  derive  some  benefit,  and  so  it  would 
not  be  for  the  sole  benefit  of  the  bailor. 

§  97.  Even  indirect  benefit  would  change  the  class  of  bail- 
ment.—  ISyQ  matter  how  slight  the  benefit,  or  how  indirectly 
it  comes  to  the  bailee,  if  there  is  any  benefit  whatever  it  would 
place  the  bailment  in  another  class  of  bailments,  viz.,  in  that 
class  where  the  benefit  is  mutual,  and  thus  change  the  liabil- 
ity of  the  bailee.  So  slight  is  the  consideration  that  will 
change  the  bailment  from  this  class  to  a  mutual-benefit  bail- 
ment, that  it  has  been  held  that  the  mere  acceding  to  a  re- 
quest on  the  part  of  the  bailee  to  perform  the  trust  of  the 

1  Preston  v.  Prathers,  137  U.  S.  G04:  Gray  v.  Merriam,  148  111.  179. 

57 


§  98.]  OKDINARY    BAILMENTS.  [PART   I. 

bailor  would  raise  the  standard  of  liability  and  render  the 
bailee  liable  for  ordinary  negligence,  and  require  of  hira  ordi- 
nary diligence,  upon  the  presumption  that  his  request,  acceded 
to,  is  a  benefit  to  him.  In  the  case  of  Vigo  Agricultural  So- 
cietij  V.  Brumfield^  where  the  plaintiff,  in  compliance  with  an 
invitation,  sent  his  gun  to  an  agricultural  fair  for  exhibition, 
the  court  held  it  a  bailment  for  the  benefit  of  both  parties,  re- 
quiring ordinary  care.     The  court  say: 

"  The  case  made  by  the  complaint  is  one  of  bailment.  The 
bailment  was  not  a  gratuitous  one,  for  the  reason  that  the  ex- 
hibition of  the  gun,  in  response  to  the  invitation  contained  in 
the  advertisement  of  the  appellant,  constituted  a  consideration 
for  the  undertaking.  It  may  be  true  that  both  parties  derived  a 
benefit,  but  this  did  not  strip  the  contract  of  its  character,  that  of 
a  bailment  for  reward.  The  reward  was  not,  it  is  true,  in  money, 
but  it  was  nevertheless  a  reward  in  the  form  of  an  act  performed 
at  the  request  of  the  bailee.  An  association  which  invites  per- 
sons to  supply  articles  to  enable  it  to  conduct  an  exhibition  re- 
ceives some  consideration  from  the  person  who  responds  to  its 
invitation  by  placing  articles  in  its  care  for  exhibition. 

"Where  a  consideration  of  an  indeterminate  value  is  agreed 
upon  by  the  parties,  the  courts  will  not  undertake  to  deter- 
mine its  adequacy,  but  will  respect  the  judgment  of  the  parties 
and  enforce  their  contract." 

§  98.  Notice  of  facts  requiring  special  care. —  While  it  is 
true  that  the  bailee  in  this  class  of  bailments  is  only  held  to 
slight  diligence  and  answerable  for  gross  negligence,  we  must 
always  keep  in  mind  that  slight  diligence  is  more  or  less  modi- 
fied or  enlarged  by  particular  circumstances,  as  shown  in  our 
discussion  of  definitions  of  diligence  and  negligence.  So  where 
the  bailee  has  had  notice  of  facts  with  reference  to  the  bail- 
ment that  require  special  care,  he  will  not  be  permitted  to  ex- 
ercise so  gross  a  degree  of  negligence  as  to  give  such  facts  no 
attention  whatever;  but  he  is  bound  to  exercise  such  a  degree 
of  diligence  as  persons  in  the  like  situation  exercise  over  mat- 
ters of  their  own  under  like  circumstances.  In  Joslyn  v.  King^ 
a  letter  carrier  delivered  a  rearistered  letter  to  the  clerk  of  a 
hotel  for  one  of  the  guests,  the  letter  containing  one  hundred 

1 102  Ind.  146.  2  97  Neb.  38. 

58 


CH.   Vl]  FOR    SOLE    BENEFIT    OF    BAILOR.  [§§  99,  100. 

dollars.  The  carrier  required  of  the  clerk  the  usual  receipt, 
which  he  signed,  received  the  letter,  and  put  it  in  the  letter- 
box of  the  hotel,  from  which  place  it  was  stolen.  It  was  held, 
in  an  action  against  the  proprietor  and  clerk  for  the  amount 
contained  in  the  letter,  that  the  receipt  signed  by  the  clerk 
was  sufficient  to  charge  him  with  notice  that  the  letter  was  of 
more  than  ordinary  importance,  and  required  special  care,  and 
that  the  letter  carrier,  having  paid  the  amount  contained  in  the 
letter  to  the  person  to  whom  it  Avas  addressed,  could  enforce  a 
liability  against  the  clerk. 

§  99.  Failure  to  obey  instructions  or  the  terms  of  the 
bailment. —  And  again,  the  fact  that  the  bailee  is  only  held  to 
slight  diligence  will  not  excuse  him  from  obeying  instructions 
or  from  following  the  terms  of  the  bailment  and  carrying  out 
the  object  of  the  bailment  contract.  The  diligence  to  which 
he  is  held  is  diligence  in  obeying  instructions,  as  well  as  the 
manner  of  doing  the  thing  he  is  instructed  to  do.  In  Colyar 
V.  Taylor,'^  the  supreme  court  of  Tennessee  held  one  liable  who 
had  gratuitously  undertaken  to  carry  the  money  of  the  bailor 
to  a  certain  place  and  deliver  it  to  another;  after  receiving  the 
money  the  bailee  gave  it  to  a  neighbor,  who  undertook  to 
carry  it  and  deliver  it  for  him,  as  requested  by  the  bailor;  while 
on  his  way  home,  in  a  crowd,  the  neighbor  had  his  pocket 
picked  of  the  money.  The  court  held  that  the  bailee  violated 
his  trust  in  handing  the  money  to  the  neighbor,  and  was  guilty 
of  gross  negligence.    The  terms  of  the  bailment  were  violated. 

§  100.  Termination  of  the  relation  and  bailor's  remedies. 
These  have  already  been  discussed  in  another  chapter,  and  it  is 
not  necessary  to  here  treat  the  subject  again,^ 

1 41  Tenn.  373;  Cannon  River  Mfg.        2  gee  ante,  ch.  V,  §§  77,  78,  etc. 
Co.  V.  First  Nat.  Bank,  37  Minn.  394 

69 


CHAPTER  YII. 

LIABILITY  OF  BAILOR  AND  BAILEE  WHEN  BAILMENT  FOR  THE 
SOLE  BENEFIT  OF  THE  BAILEE. 


101.  Commodatum. 

103.  For  sole  benefit  of  the  bailee. 

103.  The  liability  of  the  bailee. 

104.  The  contract  must  be  for  legal 

purpose. 

105.  Need  not  be  absolute  owner  to 

be  bailor  or  lender. 

106.  What  right  does  the  contract 

of  loan  or  bailment  confer  ? 

107.  Obligations  of  the  borrower. 


108.  Bailee's  defenses. 

109.  The  injury  or  loss  must  have 

been  without  his  fault. 

110.  Ordinary  and    extraordinary 

expenses  to  be  paid. 

111.  Redelivery  of  the  thing  bailed. 

112.  Borrower    cannot   retain  for 

debt  due  him. 

113.  Obligation  of  the  lender. 


§  101.  Commodatuni. —  A  bailment  for  the  sole  benefit  of 
the  bailee  is  called  commodatum. 

Definitions. —  Sir  William  Jones  defines  this  class  of  bail- 
ment thus:  "  Lending  for  use  is  a  bailment  of  a  thing  for  a 
certain  time  to  be  used  by  the  borrower  without  pacing  for  it."  ^ 
In  the  civil  law  it  is  defined  to  be  "the  granting  of  a  thing  to 
be  used  by  the  grantee  gratuitously  for  a  limited  time,  and 
then  to  be  specifically  returned." 

Auliffe  says :  "  It  is  a  grant  of  a  thing  made  in  a  gratuitous 
manner  for  a  certain  use,  and  for  a  certain  term  of  time  ex- 
pressed or  implied,  to  the  end  that  the  same  specie  should  be 
again  returned  or  restored  again  to  us,  and  not  another  specie 
of  the  same  kind  or  nature;  and  this  in  as  good  a  plight  as 
when  it  was  first  delivered." 

Lord  Holt  has  defined  this  class  of  bailment  to  be  "  when 
goods  or  chattels  that  are  useful  are  lent  to  a  friend  gratis  to 
be  used  by  him ;  and  it  is  called  a  commodatum  because  the 
thing  is  to  be  returned  in  specie.  So,  it  will  be  observed  from 
these  definitions,  that  a  commodatum  is  the  lending  of  the 
bailed  property  to  the  bailee  for  his  use  and  accommodation 
and  sole  benefit,  gratis. 

1  Jones  on  Bailments,  118,  217. 
60 


CH.  VII.]  FOR    SOLE    BENEFIT   OF    BAILEE.  [§§  102,  103. 

§  102.  For  sole  benefit  of  the  bailee. —  The  bailment  must 
be  for  the  sole  benefit  of  the  bailee,  and  there  cannot  be  any 
benefit  whatever,  either  directl}'"  or  indirectly,  to  the  bailor, 
for  if  there  is.  it  at  once  becomes  what  is  known  as  a  mutual 
bailment,  in  which  the  liabilities  of  the  parties  are  very  dif- 
ferent. 

§  103.  The  liability  of  the  bailee. —  The  bailee  in  this  class 
of  bailments  is  held  to  high  diligence  and  liable  for  slight  neg- 
ligence. The  care  to  be  bestowed  upon  the  property  by  the 
bailee  is  extraordinary  care,  and,  as  it  has  been  said,  the  bailee 
is  liable  "  not  only  for  a  slight  fault,  but  for  the  slightest  fault." 
And  again,  "  he  must  bring  to  the  thing  loaned  all  possible  care." 

In  discussing  this  extraordinary  care  and  diligence  which  is 
required  by  the  bailee.  Judge  Story  says:  "  As  the  loan  is  gratui- 
tous, and  exclusively  for  the  benefit  of  the  borrower,  he  is, 
upon  the  common  principles  of  bailments  already  stated,  bound 
to  extraordinary  diligence;  and,  of  course,  he  is  responsible  for 
slight  neo:lect  in  relation  to  the  thing  loaned." 

DO  O 

Sir  William  Jones  is  of  opinion  "  that  the  borrower's  inca- 
pacity to  exert  more  than  ordinary  diligence  will  not,  even 
upon  the  grounds  of  an  impossibility,  furnish  a  sufficient  excuse 
for  slight  neglect;  for  he  contends  that  the  borrower  ought 
to  have  considered  his  capacity  before  he  cheated  his  friend  by 
eno^ao'ini]:  in  the  act  of  borrowino:.     And  this  also  is  the  doc- 

o    o      o  o 

trine  of  Pothier.  But  his  doctrine  must  be  received  with  some 
qualification  and  reserve,  and  be  confined  to  cases  where  there 
is  either  an,  implied  agreement  for  extraordinary  diligence,  or 
the  lender  has  no  reason  to  suspect  or  presume  a  want  of  capac- 
ity; for,  if  the  lender  is  aware  of  the  incapacity  of  the  bor- 
rower, he  has  no  right  to  insist  upon  such  rigorous  diligence. 
He  has  a  right  to  insist  on  that  degree  of  diligence  only  which 
belongs  to  age,  character,  and  the  known  habits  of  the  borrower. 
Thus,  if  a  spirited  horse  is  loaned  to  a  raw  or  rash  youth,  or  to 
a  weak  and  inefficient  person  who  is  known  to  be  such,  the 
lender  must  content  himself  with  such  diligence  as  they  may 
naturally  be  expected  to  use;  and  he  has  no  right  to  insist 
upon  the  diligence  or  prudence  of  a  ver}'^  thoughtful  and  ex- 
perienced rider."  ^    The  parties  must  here,  as  in.  contracts,  be  of 

1  Story  on  Bailments,  sec.  237. 
61 


§§   101-10(3.]  ORDINARY    BAILMENTS.  [PART    I. 

legal  capacity  to  enter  into  the  contract  relation,  and,  although 
not  competent  to  malce  a  contract,  may  be  held  liable  for  de- 
struction or  injury  to  the  property;  but  it  is  put  upon  other 
grounds  than  that  of  contract  relations,  to  wit,  upon  the  ground 
that  a  tort  has  been  committed.  As,  for  example,  where  an 
infant  borrows  a  horse  to  go  to  a  certain  place,  and  rides  or 
drives  the  animal  beyond  that  place  and  he  is  injured  or  killed, 
the  action  against  the  infant  is  an  action  of  tort,  and  not  an 
action  upon  the  contract. 

§  104.  The  contract  must  be  for  legal  purpose. —  The  con- 
tract may  be  expressed  or  implied.  It  may  be  oral  or  written, 
but  in  its  nature  it  must  be  a  legal  contract,  and  not  an  im- 
moral contract,  or  a  contract  against  the  law,  Eut  if  it  should 
be  either  immoral  or  for  the  accomplishment  of  some  end  which 
the  law  does  not  countenance,  or  which  the  law  forbids,  the 
contract  would  be  void.  And  so  if  the  property  should  be 
borrowed  by  the  bailee,  and  loaned  by  the  lender  to  him  for 
an  immoral  or  illegal  purpose,  the  law  would  not  recognize 
the  contract,  even  to  the  extent  of  permitting  the  lender  to  re- 
cover the  property,  if  the  bailee  should  refuse  to  redeliver  it  to 
him,  but  the  parties  would  be  left  where  they  had  placed  them- 
selves, and  the  law  would  afford  no  further  remedy. 

§  105.  Need  not  be  absolute  owner  to  be  bailor  or  lender. 
It  is  not  requisite  to  the  contract  of  bailment  that  the  bailor 
or  lender  should  be  the  absolute  owner  of  the  bailed  property; 
he  may  have  a  qualified  or  special  property  therein  which  gives 
him  the  control  of  the  possession  and  custody  of  the  thing. 
Having  such  a  special  property  or  control,  he  can  become  a 
bailor  or  lender,  and  his  contract  of  bailment  will  only  be  lim- 
ited by  the  extent  of  his  property  interest  in  the  thing  bailed. 
It  is  said  that  a  thief  in  possession  of  stolen  property  may  be  a 
bailor  as  long  as  his  possession  has  not  been  interfered  with  by 
the  owner  or  by  the  authorities  having  the  right  to  take  the 
propert}^  from  him;  and  so,  as  we  have  seen,  the  tinder  of  prop- 
erty, who  is  entitled  to  the  possession  of  it  against  all  the  world 
except  the  owner,  may  legally  bail  the  property  to  the  bailee, 
and  the  bailment  could  only  be  limited  either  by  the  bailor  or 
the  real  owner  of  the  property. 

§  106.  What  right  does  the  contract  of  loan  or  bailment 
confer? — There  has  been  considerable  discussion  as  to  what 

62 


CII.  VII.]  FOR    SOLE    BENEFIT   OF    BAILEE.  [§§  107-109. 

right,  strictly  speaking,  the  bailee  in  this  class  of  bailments 
has.  But  it  seems  to  be  the  weight  of  authority  that  he  has 
a  possessory  interest  in  the  chattels  bailed  which  he  may 
defend  in  court.  He  has  the  right  to  use  the  property  in  ac- 
cordance with  the  contract  of  bailment  and  the  intention  of 
the  parties.  His  use,  however,  is  strictly  confined  to  the  use 
that  is  expressed  or  implied  in  the  contract  of  bailment.  As, 
for  example,  if  one  should  borrow  a  horse  to  ride  to  a  certain 
place,  he  would  have  no  right  to  go  beyond  that  place;  and 
notwithstanding  the  rule  of  law  excusing  him  for  loss  of  the 
property,  if  it  occurs  by  the  act  of  God  or  the  public  enemy,  if 
the  horse  should  be  lost  during  the  time  he  was  being  used  by 
the  bailee,  according  to  the  contract  and  the  intention  of  the 
parties,  he  could  not  excuse  the  loss  of  the  property,  even  for 
those  causes  or  by  inevitable  casualty,  if  at  the  time  he  was 
using  the  property  in  an  unauthorized  manner;  that  is  to  say, 
the  bailee  would  be  liable  for  using  the  subject  of  the  bailment 
contrary  to  the  contract  of  bailment. 

§  107.  Obligations  of  the  borrower. —  Under  the  contract 
of  bailment  the  borrower  is  bound  to  take  good  care  of  the 
property;  to  use  it  in  accordance  with  the  intention  of  the  par- 
ties to  the  bailment,  expressed  or  implied  by  the  contract  cre- 
ating the  relation,  and  to  exert  and  exercise  in  the  candying 
out  of  the  bailment  extraordinary  diligence  and  care;  and  for 
any  loss  other  than  for  this,  even  because  of  slight  neg'ect,  the 
borrower  would  be  liable.  This  liability  may  be  limited  by 
contract,  but  the  liability  of  the  bailor  in  this  class  of  bailment, 
as  in  others  before  discussed,  cannot  be  limited  to  the  extent 
of  allowing  the  bailee  to  commit  fraud,  or  so  as  to  excuse  gross 
negligence. 

§  108.  Bailee's  defenses. —  The  bailee  or  borrower,  in  case 
of  7nandatu7n,  is  excused  for  injury  or  loss  to  the  property  where 
the  injury  or  loss  is  occasioned  by  the  act  of  God,  the  public 
enemy,  irresistible  force,  or  inevitable  accident.  But,  while 
the  bailee  may  be  thus  excused,  he  cannot  invoke  these  ex- 
cuses unless  he,  himself,  can  show  that  the  loss  could  not  have 
been  prevented  or  guarded  against  by  the  exercise  of  extraor- 
dinary diligence  upon  his  part. 

§  109.  The  injury  or  loss  must  have  been  without  his  fault. 
If  the  borrower  or  bailee  should  in  any  way  fail  to  exercise 

63 


§   110.]  ORDINARY    BAILMENTS.  [PART    I. 

extraordinary  diligence  in  avoiding  the  loss,  or  if  he  should  be 
found  guilty  of  the  slightest  negligence  with  reference  to  it, 
and  by  reason  of  this  slight  negligence,  or  failure  to  exercise 
this  extraordinary  diligence,  the  loss  or  injurj^  was  occasioned, 
in  such  case  he  could  not  be  excused.  As,  for  example,  it  has 
been  held  that  where  one  in  possession  of  the  borrowed  prop- 
erty leaves  the  highway  and  goes  by  a  way  which  is  frequented 
by  robbers,  and  is  robbed  of  the  property,  although  by  over- 
powering force,  he  would  be  held  liable.  So,  any  undue  ex- 
posure of  the  property  which  would  not  be  made  by  a  very 
prudent  man  would  render  the  bailee  liable.  It  is,  however, 
a  rule  of  law  that  the  neglect  in  order  to  render  a  bailee  liable 
for  injury  or  loss  of  the  property  must  be  a  neglect  of  duty 
which  the  bailee  was  bound  to  have  performed,  or  some  omis- 
sion to  exercise  diligence  which  he  was  in  duty  bound  to  ex- 
ercise; and  this  required  duty  or  diligence  must  be  a  duty  or 
diligence  which  is  imposed  by  the  contract  which  creates  the 
bailment. 

§  110.  Ordinary  and  extraordinary  expenses  to  be  paid. — 
The  implication  is,  from  every  contract  of  this  nature,  that 
the  bailee  will  put  the  propert}'^  to  its  natural  and  ordinary 
use,  and  if  in  so  using  it  he  is  put  to  expense,  he  himself  will 
be  required  to  pay  the  expenses.  As,  for  example,  if  the  prop- 
erty be  a  horse  placed  in  possession  of  the  bailee  for  use,  its 
natural  and  ordinary  use  would  require  that  the  horse  should 
be  fed,  stabled  and  cared  for;  that  he  would  require  shoeing. 
These  would  be  ordinary  and  usual  expenses  in  the  use  of  the 
animal,  and  the  borrower  would  be  liable  on  account  of  them. 
But  if,  on  the  other  hand,  there  should  be  extraordinary  ex- 
penses,—  expenses  that  are  not  occasioned  or  necessary  by  rea- 
son of  the  natural  or  ordinary  use  of  the  property,  for  such  ex- 
traordinary expense  the  bailor  would  be  liable,  and  not  the 
bailee  or  lender  of  the  property.  As  in  the  example  just  used, 
while  the  borrower  would  be  liable  for  the  expenses  that  are 
occasioned  by  the  ordinary  use  of  the  horse,  if  the  horse  should 
be  taken  violently  sick,  and  it  should  become  necessary  to  em- 
ploy a  veterinary,  and  thus  large  and  unusual  expenses  were 
incurred,  the  bailor  would  be  liable  for  this  expense;  and  if 
the  borrower  or  the  bailee  should  in  the  first  instance  pay 

64 


cii.  til]  for  sole  benefit  of  bailee.  [§§  111-113. 

them,  he  could  recover  from  the  bailor  the  amount  of  such  ex- 
penditures. 

§111,  Redelivery  of  the  thing  bailed. —  At  the  termina- 
tion of  the  bailment  contract  it  is  the  duty  of  the  bailee  to 
return  to  the  bailor  or  lender  the  identical  property  that  was 
loaned  to  him,  together  with  all  natural  accessions  to  the 
property;  as,  for  example,  an  animal's  offspring,  born  during 
the  bailment  relation.  If  bonds  or  securities;  for  interest 
that  had  accumulated  or  that  had  been  collected;  and  this  re- 
delivery must  be  made  at  the  place  and  at  the  time  mentioned 
in  the  contract,  or  implied  by  the  agreement,  or  in  accordance 
Avith  the  intention  of  the  parties  at  the  time  the  bailment  re- 
lation w^as  entered  into;  and  the  property  should  be  delivered 
to  the  bailor,  even  though  he  is  not  the  owner  of  the  property; 
and  a  delivery  to  an  agent  of  the  bailor,  unless  he  was  espe- 
cially authorized  by  the  bailor  to  receive  the  property,  would 
not  be  sufficient. 

§  112.  Borrower  cannot  retain  for  debt  due  him. —  This 
bailment  relation  contemplates  the  redelivery  to  the  bailor  of 
all  the  property  which  was  loaned,  and  the  borrower  would 
have  no  right  to  retain  it,  or  any  portion  of  it,  as  security  for 
a  debt  due  and  owing  to  him  from  the  bailor.  In  this  class 
of  bailments  no  lien  is  created  by  implication,  and  if  there  is 
no  intention  of  the  parties  expressed  in  the  bailment  contract 
the  law  will  not  create  a  lien  by  implication.  There  is,  how- 
ever, an  exception  to  this  rule  where  the  borrower  has  been 
compelled  to  pay  extraordinary  expenses,  as  we  have  before 
mentioned;  as,  for  example,  by  way  of  doctoring  the  sick 
horse,  or  pursuing  and  recovering  the  property  if  stolen.  In 
such  case  the  lender  of  the  property  is  legally  bound  to  reim- 
burse the  borrower  for  such  extraordinary  expenditure,  and  if 
he  should  fail  to  do  so,  the  borrower,  by  implication,  would 
have  a  lien  upon  the  property  bailed  to  him. 

§113.  Obligations  of  the  lender. —  The  obligations  of  the 
lender  in  this  class  of  bailments  are  few.  It  may  be  said,  how- 
ever, that  he  is  obliged  to  allow  the  borrower  to  use  and  en  joy 
the  bailment  during  the  time  for  which  the  property  is  loaned, 
and  in  accordance  with  the  intention  of  the  parties  at  the  time 
I  of  making  the  loan,  and  that  this  enjoyment  and  use,  if  such 
I  was  the  intention  of  the  parties,  is  to  be  without  molestation 

i  5  65 

i 


§   113.]  OKDINAEY    BAILMENTS.  [pART   I. 

or  interference;  and  if  the  bailor,  contrary  to  the  expressed 
stipulation  of  the  contract,  should  deprive  the  borrower  of  this 
use  and  enjoyment  of  the  property,  he  would  be  liable  in  an 
action  for  damages.  It  would  seem,  however,  that  in  this  par- 
ticular class  of  bailments,  where  the  benefit  is  entirely  for  the 
bailee,  that  such  a  liability  could  not  be  imposed  upon  the 
lender  or  bailor  except  by  express  contract;  because  in  bail- 
ments of  this  kind,  unless  there  is  some  stipulation  in  the  con- 
tract to  the  contrary,  or  unless  it  should  result  in  very  great 
inconvenience  to  the  bailee  —  an  inconvenience  that  the  courts 
would  say  was  unwarranted, —  the  bailor  can  at  any  time  ter- 
minate the  bailment  by  giving  notice  of  his  intention  to  do  so 
to  the  bailee.  If  the  borrower's  enjoyment  of  the  possession 
and  use  of  the  property  is  interrupted  or  molested  by  a  stran- 
ger, the  bailor  would  in  nowise  be  liable  to  the  bailee,  unless 
it  could  be  shown  that  the  act  of  the  stranger  was  brought 
about  by  connivance  or  request  of  the  lender.  But  if  this  were 
not  the  case,  the  borrower  could  only  proceed  against  the 
stranger. 

Temnination  of  the  'bailment. —  This  has  already  been  dis- 
cussed and  need  not  be  again  repeated.^ 

1  Ante,  ch.  V. 
66 


CHAPTER  YIIL 


LIABILITY    OF    BAILOR    AND    BAILEE    WHEN    BAILMENT    FOR 
BENEFIT  OF  BOTH. 


§  114.  Of  the  nature  and  extent  of 
mutual-benefit  bailments. 

115.  Locatio     et    conductio    bail- 

ments. 

116.  Some  definitions  further  ex- 

plaining. 

117.  A  general  view  —  Locatio  et 

conductio. 


§  118. 


—   Locatio  conductio  bail- 
ments. 

119.  What    the   hiring  bailments 

embrace. 

120.  General   subdivisions   of   the 

hiring  bailments. 


§  114.  Of  the  nature  and  extent  of  mutual-benefit  bail- 
ments.—  In  this  class  of  bailments  mutuality  of  benefit  is  the 
leading  feature  of  the  contract,  and  by  it  is  fixed  the  liability 
of  the  parties.  The  consideration  supporting  the  contract  is 
valuable  to  both,  and  the  property  interest  in  the  bailment  is 
distinct. 

This  is  by  far  the  most  important  class  of  bailments  and  will 
necessarily  include  in  its  discussion  a  great  variety  of  business 
relations.  Belonging  to  this  class  are  pledge  and  pawn,  inn- 
keepers, and  the  so-called  exceptional  bailments  —  postmasters 
and  common  carriers;  all  of  the  bailments  known  and  com- 
monly denominated  as  the  ^'' locatio''''  bailments  with  their  sub- 
divisions; '■'■locatio  rei^''  which  includes  the  hiring  of  property 
for  use,  and  of  itself  embraces  a  large  amount  of  business; 
'"'' locatio  opori^ fac'iendi^''  embracing  all  of  that  volume  of  con- 
tracts arising  from  the  hiring  of  work  and  labor  to  be  performed 
on  the  bailed  property  in  the  hands  of  the  bailee  who  performs 
the  labor;  '■'■  locatio  custodioi^''  all  that  class  of  business  relations 
pertaining  to  the  care  and  custody  of  goods,  as  warehousemen, 
elevatormen,  and  the  like.  Then  those  exceptional  bailments 
which,  because  of  the  peculiar  and  important  relations  the}'' 
create,  coming  so  near  to  the  personal  interests  of  mankind, 
and  often  involving  their  safety,  and  for  this  reason,  espe- 
cially, governed  and  controlled  by  public  policy.  Innkeepers, 
or,  as  they  are  more  modernly  called,  hotel-keepers;  postmasters 

67 


§§  115,  IIG.]  ORDINARY    BAILMENTS.  [PART    I. 

who  have  charge  of  the  great  volume  of  mail  of  the  country; 
and  last  and  most  important,  that  class  denominated  in  the 
Roman  subdivision  as  '•'■  locaiio  o^xjris  mereium  vehendaruvi^''''  or 
the  hiring  of  the  transporting  of  goods  which  embrace  the 
immense  carrying  trade  of  freight  and  passengers  by  the  car- 
riers of  the  world. 

To  mention  these  great  business  interests  is  to  impress  one 
with  the  importance  of  the  subject  in  hand.  To  determine 
something  of  the  manner  of  the  carrying  on  of  these  vast  in- 
terests, and  to  treat  of  the  liability  of  the  parties  engaged  in 
the  prosecution  of  it,  is  the  work  before  us. 

§  115.  Locatio  et  eoiidiu'tio  bailments. —  The  hiring  bail- 
ments, so  called,  are  denominated  "Zoca^io"  bailments,  which 
term  is  used  as  well  in  referring  to  the  "hiring"  bailments  as 
the  "letting"  bailments;  the  hiring  of  the  use  of  the  thing 
bailed  as  the  letting  of  the  thing  to  be  used.  The  conductio 
bailments,  that  is  to  sa}'  locatio,  which  means  letting,  is  used 
indiscriminately  with  conductio,  which  means  hiring.  All  these, 
whether  hiring  or  letting,  in  our  law  are  termed  '''' locatio'''' 
bailments.  That  is  to  say,  this  class  of  bailments  is  broader 
and  includes  more' than  the  mere  Zoca^^'o  (letting)  bailments. 
They  embrace,  as  well,  the  conductio  (hiring)  bailments;  and 
so,  in  discussing  this  subject,  we  shall  treat  locatio  bailments 
as  including  the  conductio  bailments. 

§110.  Some  definitions  further  explaining. —  With  what 
has  just  been  said  as  to  this  class  of  bailments,  we  call  atten- 
tion to  some  of  the  definitions  of  writers  on  this  subject. 
Pothier  defines  this  class  of  bailments  to  be:  "A  contract  by 
which  one  of  the  contracting  parties  engages  to  allow  the 
other  to  enjoy  or  use  the  thing  hired  during  the  stipulated 
period,  for  a  compensation  which  the  other  party  engages  to 
pay."     Lord  Holt   in    Coggn  v.   Bernard  defines   it:  "When 
goods  are  left  with  the  bailee  to  be  used  by  him  for  hire."i 
These  definitions  only  contemplate  the  hiring  of  the  thing,  andi 
the  letting  of  the  thing  for  hire,  and  exclude  that  other  feat- 
ure of  bailments  of  this  class  —  the  hiring  of  labor  and  serv- 
ice upon  and  about  the  thing.  Bell  defines  with,  perhaps,  more] 
exactness:  '■'•Locatio  is  in  general  defined  to  be  a  contract  byj 
which  the  temporary  use  of  the  subject,  or  the  work  or  service] 
of  a  person,  is  given  for  an  ascertained  hire."     And  Judge, 

68 


OU.  VIII.]  FOR    BENEFIT    OF    BAILOK    AND    BAILEE.  [§   117. 

Story  defines  it  in  still  more  comprehensive  language,  saying: 
"At  common  law  it  may  properly  enough  be  defined  to  be  a 
bailment  of  a  personal  chattel,  whose  compensation  is  to  be 
given  for,  the  use  of  the  thing,  or  for  labor  or  for  services 
about  it;  or,  in  other  words,  it  is  a  loan  for  hire,  or  a  hiring 
or  letting  of  goods,  or  of  labor  or  services  for  a  reward." 

§  117.  A  general  view  —  Locatio  et  condnctio. —  Keeping 
in  view  what  has  been  said  by  way  of  introduction  of  this  di- 
vision of  our  subject,  we  are  at  once  introduced  into  a  broad 
and  extensive  field  of  bailment  law,  compassing  and  bringing 
within  its  limits  varied  and  almost  innumerable  branches  of 
business.  For,  turn  where  we  will  in  the  ordinary  pursuits  of 
business  life,  we  meet  in  one  form  or  another  this  great  and 
important  subject.  The  millionaire  and  capitalist,  the  profes- 
sional man,  the  mechanic  and  artisan,  even  the  laboring  man, 
all  of  every  class  and  pursuit  are  met  by  the  great  enterprises 
embraced  in  this  class  and  by  the  rules  of  law  governing  the 
locaiio  bailments. 

The  millionaire  and  capitalist  who  deals  in  stocks,  bonds  and 
loans  and  intrusts  large  personal  securities  to  others  for  specu- 
lation and  investment,  who  projects  great  internal  improve- 
ments as  the  building  and  operating  of  railroads,  and  sends  the 
steamships  to  plow  the  ocean  and  inland  lakes;  the  great 
corporations  who  engage  in  the  business  of  banking  and  bro- 
kerage; the  trust  companies  who  look  after  securities,  certifi- 
cates of  stock  and  coupons,  and  keep  within  their  safe-deposits 
the  money,  title-deeds  and  securities  of  others;  the  Avarehouse- 
raen  who,  within  the  walls  of  our  great  warehouses,  store  the 
immense  accumulation  of  personal  property  left  with  them  for 
safe  storage;  the  wharfingers  who  hold  for  shipment  by  the 
great  ocean  liners  and  stcamsliips  of  the  great  lakes  and  rivers 
the  immense  consignments  of  freight;  the  manufacturers,  me- 
chanics and  artisans  who  manufacture  the  hundi-ods  of  thou- 
sands of  articles  for  the  daily  use  and  consumption  of  mankind ; 
the  farmer  who  feeds  and  slielters  our  animals  for  hire;  the 
liveryman  who,  for  a  reward,  furnislies  for  others  horses  and 
carriages  for  their  transportation  in  and  about  the  carrying  on 
of  their  business  and  for  pleasure;  the  jeweler  Avho  manufac- 
tures for  hire  and  reward  the  jewels  for  our  adornment,  and 
repairs  our  watches;  the  tailor  who  manufactures  our  cloth 

01)     . 


§§  118,  119.]  OKDIXARY    BAILMENTS.  [PART    I. 

into  suits  of  clothing  for  our  wearing  apparel;  the  miller  who 
grinds  our  corn  and  wheat  and  other  grains  into  flour  for  our 
bread  and  feed  for  our  animals, —  all  these  and  more  are  depend- 
ent upon  the  law  governing  this  class  of  bailments  for  their 
protection  and  defense  and  the  settlement  of  their  property- 
interests,  this  locatio  conduction  this  letting  and  hiring  of  things, 
and  labor  and  service  about  the  things  bailed;  to  discuss  such 
a  subject  in  all  its  details  would  consume  more  space  than  we 
can  give  it  in  a  volume  like  this,  and  require  a  research  into 
the  texts  of  authors  and  adjudications  of  courts  that  would  be 
almost  endless.  At  most  we  can  only  hope  to  classify  and 
treat  of  governing  principles  that  in  their  application  embrace 
the  general  subdivision  of  the  subject. 

§  118.  Loeatio  coiHliictio  bailments. —  These  are  com- 
monly called  the  hiring  bailments.  They  are  created:  (1)  by 
contract  expressed  or  implied;  the  contract  may  be  oral  or  in 
writing,  and  is  supported  by  the  mutual  consideration  or  benefit 
to  both  of  the  parties;  (2)  by  operation  of  law,  as  in  case  of 
possession  of  property  obtained  by  ofiicers  of  courts,  prize 
agents  and  salvors;  this  possession  is  commonly  known  as  quasi- 
bailments. 

§  119.  The  hiring  bailments  embrace  (1)  the  letting  of  the 
thing  for  hire;  (2)  the  hiring  of  the  thing  for  a  reward; 
(3)  work  and  labor  and  service  upon  and  about  the  thing  for 
compensation.  It  must  be  continually  borne  in  mind  that  the 
subject  of  the  bailment  is  always  personalty,  and,  as  we  have 
seen,  it  may  be  corporal  or  incorporeal;  that  is  to  say,  it  may 
be  tangible  personal  property,  as  horses,  carriages,  manufactured 
articles,  ships,  railroad  cars,  and  the  like ;  or  incorporeal, as  stocks, 
bonds,  notes,  evidences  of  value,  and  the  like,  but  not  realty. 
The  law  of  bailments  operates  purely  and  solely  in  rem  —  it  is 
the  letting  of  the  thing  which  is  the  subject-matter  of  the  bail- 
ment for  hire;  as,  for  example,  the  letting  of  the  horse  and 
carriage  b}^  the  liveryman,  the  bailor,  to  be  used  and  enjoyed 
by  the  bailee  who  takes  it  temporarily  into  his  possession,  for 
which  the  bailee  pays  to  the  bailor  a  recompense;  the  perform- 
ing of  some  service  or  the  hirins:  of  some  service  or  labor  to  be 
performed  upon  the  thing,  the  subject  of  the  bailment,  by  the 
bailee  who  has  the  property  in  his  possession,  for  which  he  re- 
ceives some  reward  from  the  bailor;  that  is  to  say,  the  thing, 

70 


CH.   VIII.]  FOR    BENEFIT    OF    IJAILOK    AND    BAILEE.  [§   ll^U. 

the  property  which  is  the  subject  of  the  bailment  upon  which 
the  service  is  to  be  performed,  as  contradistinguished  from  the 
mere  hiring  of  labor  and  service.  To  illustrate,  A.,  the  bailor, 
delivers  to  B.  (a  jeweler),  the  bailee,  his  watch  to  be  repaired. 
A.  hires  B.  to  do  certain  labor  upon  the  thing,  his  watch, 
for  which  he  pays  a  certain  compensation;  the  subject  of  the 
bailment  is  at  all  times  the  watch,  the  watch  delivered  for  re- 
pairs, the  watch  with  the  labor  performed  upon  it,  the  watch 
repaired ;  and  not  the  labor  and  skill  which  repaired  it. 

§  120.  Geueral  subdivisions  of  the  hiring  bailments. — 
From  what  has  been  said,  it  will  be  noticed  that  this  class  of 
bailments  naturally  divide  themselves  into  three  general  sub- 
divisions, viz.: 

First.  The  hiring  of  the  thing  for  use. 

Second.  The  hiring  of  work  and  labor  to  be  bestowed  upon 
or  about  the  thing. 

Third.  The  hiring  of  care  and  custody  of  the  thing. 

These  subdivisions  will  be  discussed  in  the  next  succeeding 
chapters. 

71 


OHAPTEE  IX. 


LOCATIO  REL 


§  121.  The  hiringof  the  thing  for  use. 

122.  A  contract  relation. 

123.  Bailor's   title  —  Warranty  of 

bailor. 

124.  Bailee's  possession  —  Property 

interest  in  the  thing. 

125.  Duty  of  bailor  to  give  notice 

of  defects  rendering  thing 
unfit  for  use  or  dangerous. 

126.  Bailee  —  Good  faith  of  —  Mis- 

use of  thing. 

127.  Conversion  —  What  consti- 

tutes. 

128.  Exercising  unauthorized 


dominion  and  control  over 
property  —  Conversion. 

129.  Bailor's   right    against  third 

party,  against  bailee. 

130.  Bailee's  liability  to  third  par- 

ties for  negligent  use  —  Bail- 
ee's negligence  not  imput- 
able to  bailor. 

131.  Bailee's  right  under  certain 

circumstances  to  assign  his 
interests. 

132.  Extraordinary  and  incidental 

expenses. 

133.  Termination  of  the  bailment. 


§  121.  The  hiring  of  the  thing  for  use. —  This  class  of  bail- 
ments include  the  locatio  et  conductio  rei  bailments  —  the  let- 
ting and  the  hiring  of  the  thing.  Let  us  notice  some  of  the 
very  common  examples  of  this  class —  examples  that  are  of  daily 
observation  to  all  of  us.  A.  calls  on  B.,  who  is  a  liveryman,  to 
hire  for  his  use  a  horse  and  carriage  to  drive  from  Detroit  to 
Birmingham.  B.,  the  liveryman,  lets  the  horse  and  carriage 
to  A.  for  use,  for  a  consideration  paid  by  A. —  the  letting  and 
the  hiring  of  the  thing  for  use.  F.,  a  farmer,  calls  on  X.,  his 
neighbor,  to  hire  his  team  of  horses  and  wagon  to  draw  his 
wheat  to  the  market  town;  jST.  lets  him  have  the  team  and 
Avagon  for  the  purpose  of  the  bailment,  viz.,  to  haul  F.'s  wheat 
to  the  market  town,  and  receives  from  F.  a  consideration  for 
the  use  of  the  thing, —  the  team  and  wagon;  the  letting  and 
hiring  of  the  thing. 

Often  the  consideration  or  benefit  is  not  so  apparent  as  in 
the  examples  given.  As,  for  example,  the  courts  have  held 
that  even  though  the  benefit  is  an  indirect  benefit,  or  gaining 
of  advantage  or  favor,  it  belongs  to  this  class. 

In.  a  Pennsylvania  case.  Woodruff  v.  Painter^  a  merchant 


1 150  Pa.  St.  91. 

72 


CH.  IX.]  LOCATIO  KEI.  [§  122. 

was  held  liable  for  the  loss  of  a  cloak  of  one  of  his  customers 

who  laid  it  off  at  his  suggestion  in  order  to  try  on  a  new  cloak 

which  he  was  endeavoring  to  sell  her,  the  court  holding  that 

he  was  bound  to  exercise  ordinary  diligence  in  caring  for  the 

cloak;  that  it  was  in  his  custody.     And  so  it  has  been  held 

that  a  merchant  was  holden  to  ordinary  care  in  caring  for  a 

watch  placed  in  a  drawer  of  his  store  at  the  suggestion  of  a 

clerk  during  the  time  the  customer  was  engaged  in  trading. 

All  these  cases  were  upon  the  theory  that  there  was  indirect 

benefit;  the  customer  in  having  the  property  cared  for,  the 

merchant  in  the  opportunity  to  sell  his  goods,  and  the  care  of 

the  things,  the  subject  of  the  bailment,  being  an  incident  to  the 

business  in  which  he  was  engaged.     And  in  a  case  where  the 

plaintiff,  having  a  horse  for  which  he  had  no  use,  to  avoid 

the  expense  of  keeping,  requested  the  defendant  to  take  it  and 

do  his  work  with  it  in  consideration  of  its  feed  and  keeping,  it 

was  held  by  the  Iowa  court  that  this  was  not  a  mere  commo- 

datum  or  gratuitous  loan,  under  which  the  defendant  would  be 

required  to  exercise  extraordinary  care,  but  a  contract  for  the 

mutual  benefit  of  both  parties,  under  which  the  defendant  was 

required  to  exercise  only  ordinarv  care  in  the  keeping  and  care 

of  the  animal.^     The  consideration,  as  we  have  said,  need  not 

be  direct;  it  need  not  be  a  money  consideration.     Somewhat 

emphasizing  this  is  the  opinion  of  the  supreme  court  of  Illinois 

in  Francis  v.  Shrader^  where  the  court  carefully  distinguishes 

between  a  gratuitous  and  benefit  bailment.     The  plaintiff,  the 

owner  of  a  mare,  delivered  her  to  the  defendant  to  be  broken 

to  service,  the  defendant  to  pay  no  compensation  for  her  use. 

The  mare  ran  away  and  was  killed.  The  court  below  held  the 

defendant  to  extraordinary  diligence  because  he  was  to  pay 

nothing  for  the  use  of  the  mare.     The  supreme  court  reversed 

the  judgment,  holding  that  it  was  a  benefit  to  both  bailor  and 

bailee,  and  the  bailee,  the  defendant,  should  be  held  only  to 

ordinar}^  diligence;  that  it  was  not  necessary  that  money  should 

be  paid;  if  there  was  benefit  by  reason  of  breaking  the  mare 

to  service  to  the  bailor,  and  use  of  the  mare  to  the  bailee,  it 

was  a  mutual-benefit  bailment. 

§122.  A   contract   relation. —  This,  like   other   bail- 
ments noticed,  is  a  contract  relation;  the  bailment  is  created 

1  Chamberlain  v.  Cobb,  32  Iowa,  G.  2  67  111.  273. 

73 


§§  123-125.]  ORDINARY    BAILMENTS.  [PART    T, 

by  contract.  Incident  to  entering  into  the  relation  is  the  con- 
tract, express  or  implied,  for  bailment,  by  which  it  is  under- 
stood that  the  parties  are  to  enter  into  the  relation;  if  this  is. 
supported  by  a  consideration,  then  the  bailor  is  bound  by  this 
contract  for  bailment  to  deliver  the  thing  to  be  bailed  to  the 
bailee,  and  the  bailee  may  be  compelled  to  carry  out  the  bail- 
ment according  to  the  contract. 

§123.  Bailor's  title  —  Warranty  of  bailor. —  It  is  not  re- 
quired that  the  bailor  should  be  the  owner  of  the  propert}',  or 
that  he  have  the  absolute  title  to  the  thing;  the  only  requisite 
is  that  he  have  such  a  possessory  right  to  the  thing  and  the 
use  of  the  thing  that  he  can  deliver  it  to  the  bailee  for  the 
purpose  of  the  bailment.  It  may  be  that  the  only  right  the 
bailor  has  is  a  lease  of  the  property.  The  bailor,  however,  at 
the  time  of  entering  into  the  bailment  relation  warrants  to  the 
bailee  sufficient  title  or  right  to  the  thing  bailed  to  enable  the 
bailee  to  carry  out  the  bailment.  Any  failure  of  the  relation 
to  the  damage  or  injury  of  the  bailee  because  of  want  of  title, 
or  right  to  grant  possession  and  use  for  the  purposes  of  the 
bailment  on  the  part  of  the  bailor,  would  subject  the  bailor  to 
an  action  on  the  part  of  the  bailee.  As,  for  example,  if  by 
reason  of  superior  legal  right  of  a  third  party  the  bailee  should 
be  deprived  of  the  possession  and  use  of  the  thing  before  the 
expiration  of  the  bailment,  and  thus  damaged,  he  would  have 
an  action  against  the  bailor  on  account  of  failure  of  his  title. 

§  124.  Bailee's  possession  —  Property  interest  in  the  thing.. 
From  what  has  been  said,  it  follows  that  the  bailee  is  entitled 
to  the  possession  of  the  thing  and  its  use  for  the  purposes  of 
the  bailment.  The  extent  of  the  rights  of  the  bailee  depends, 
of  course,  upon  the  contract  and  the  purposes  of  the  bailment. 
The  possession  and  use  of  the  thing  is  a  property  interest  in  the 
bailee,  of  which  he  cannot  be  deprived  so  long  as  he  fulfills 
upon  his  part  the  bailment  contract,  except  it  be  by  some  one 
who  has  a  better  legal  rio^ht  to  it  than  the  right  or  title  of  the 
bailor.  But  as  against  the  bailor,  or  any  persons  claiming 
under  him,  or  who  claim  by  a  lesser  right  or  title,  the  bailee 
can  defend  his  rights  to  use  and  possession. 

§  125.  Dnty  of  bailor  to  give  notice  of  defects  rendering 
thing  unfit  for  use  or  dangerous. —  It  cannot  be  said  that 
there  is  an  implied  warranty  on  the  part  of  the  bailor  that  the 

74 


i 


CH.   IX.]  LOCATIO    IJEI.  [§   126. 

thing-  is  fit  for  the  purposes  of  the  bailment,  or  that  its  use 
would  not  result  in  danger  to  the  bailee;  and  yet  the  obliga- 
tion of  the  bailor  is  very  nearly  that.  So  far  as  he  knows,  his 
obligation  is  a  warranty  that  the  thing  is  fit  for  the  use  for 
which  it  was  hired,  and  that  its  use  is  not  dangerous  if  in  its 
use  the  bailee  exercises  ordinary  care.  And  the  bailor  is 
bound  to  know  the  full  facts,  if  by  exercising  at  least  ordinary 
care  he  could  find  out.  And  if  the  thing  hired  for  use  might 
in  its  use  be  dangerous,  and  results  in  death  or  great  bodily 
harm,  then  the  bailor  will  be  held  to  have  known  that  its  use 
was  dangerous  and  would  so  result,  if  by  exercising  a  high  de- 
gree of  diligence  he  might  have  known.  If  the  bailor  gave 
notice  of  the  defect,  and,  disregarding  it,  the  bailee  hired  the 
thing,  and  by  its  use  was  damaged  because  of  its  unfitness,  in 
such  case  the  bailor  would  be  relieved  of  liability;  and  so  if 
the  defect  was  a  latent  defect,  and  by  careful  examination 
could  not  have  been  discovered  by  the  bailor,  and  was  not 
known  to  him  at  the  time  of  the  hiring  of  the  thing.  And  so 
it  has  been  held  that  the  plaintiff,  bailee,  could  recover  in  an 
action  for  personal  injuries  caused  by  the  sudden  collapse, 
while  in  ordinary  use,  of  a  bicycle  leased  by  defendant  to  plaint- 
iff; the  complainant  alleging  defects  in  construction,  and  that 
the  machine  was  not  strong  enough  for  ordinary  use,  which 
allegations  were  not  denied.^  If  the  bailor  should  let  to  the 
bailee,  without  notice,  a  vicious  horse, — -a  horse  that  he  knew 
to  be  vicious,  or  by  the  exercise  of  care  and  prudence  ought  to 
have  known  w^as  vicious, —  and  the  bailee  should  suffer  an  in- 
jury from  the  use  of  the  animal,  the  bailor  Avould  be  liable.- 

§  126.  Bailee  —  Good  faith  of — Misuse  of  thing. —  In  this 
as  in  all  classes  of  bailments,  absolute  good  faith  on  the  part 
of  the  bailee  in  carrying  out  the  purposes  of  the  bailment  is 
required,  and  this  good  faith  extends  to  the  use  of  the  thing 
hired.  The  bailee  would  not  be  permitted  to  use  the  thing  for 
any  other  purpose  than  the  purpose  named  in  the  contract,  or 
by  the  contract  and  its  purpose  implied.  If  A.  should  hire  a 
driving  horse  from  B.,  he  would  not  be  permitted  to  use  him 
for  a  dray  horse,  or  put  him  at  plowing.^     Or  if  hired  to  goto 

1  Moriarty  v.  Porter,  49  N.  Y.  S.  107,        3  Lockwood  v.  Ball,  1  Cow.  (N.  Y.) 
22  Misc.  Rep.  536.  322. 

2  Kissman  v.  Jones,  5G  Hun,  432. 

75 


§  127.]  ORDINARY    BAILMENTS.  [PART   I. 

one  place,  as  on  a  journey  to  Detroit,  the  hirer  would  have  no 
right  to  go  to  some  other  place,  or  drive  him  a  greater  dis- 
tance;^ or,  if  the  horse  were  hired  for  a  day,  and  the  bailee 
should  keep  him  a  week,-  the  bailee  would  be  liable. 

The  question  is,  Did  the  bailee  use  the  thing  in  a  diflferent 
way  or  for  a  different  purpose  than  that  prescribed  or  implied 
in  the  contract  for  hiring?  The  earlier  cases  were  very  strin- 
gent, holding  that  when  the  bailee  thus  violated  the  contract 
by  misuse  of  the  property  he  was  guilty  of  conversion,  and 
would  be  liable  for  any  injury  that  overtook  the  property, 
even  if  caused  by  act  of  God  or  inevitable  accident;  the  theory 
being  that  by  the  misuse  of  the  thing  the  bailee  is  guilty  of 
conversion,  and  all  the  risks  are  cast  upon  him  that  would  fall 
upon  an  owner.^ 

§127.  Conversion  —  What  constitutes. —  Mere  misuse  of 
the  property  does  not  constitute  conversion.  There  must  be 
an  intentional  deviation  from  the  contract  —  an  assertion  of 
right  or  dominion  over  the  property''  inconsistent  with  the 
bailor's  rights  and  ownership.  The  K^ew  Hampshire  court  held 
that  "a  conversion  consists  in  an  illegal  control  of  the  thing 
inconsistent  with  the  plaintiff's  right  of  property."*  But  just 
what  act  upon  the  part  of  the  bailee  constitutes  conversion  of 
the  thing  hired  has  caused  a  great  deal  of  discussion  and  dis- 
agreement among  authors  and  courts.  There  is  a  line  of  au- 
thorities which  holds  that  if  the  hirer  of  a  horse  should  drive 
him  beyond  the  place  for  which  he  was  hired,  that  act  would 
be  deemed  a  conversion;  and  if  the  animal  should  suffer  in- 
jury, even  after  returning  within  the  limits  for  which  it  was 
hired,  the  bailee  would  be  liable  for  conversion  of  the  prop- 
erty. The  Massachusetts  court,  in  Spooner  v.  Manchester,  held 
"  that  an  intentional  deviation  from  the  line  of  travel  is  an  act 
of  dominion  exercised  over  the  horse  inconsistent  with  the 
rights  of  the  owner,"  ^  Another  class  of  cases  holds  that  if  the 
animal  did  not  receive  the  injury  while  being  driven  without 
the  limits  of  the  hiring,  the  bailee  would  not  be  held  for  con- 
version.'' 

1  Coggs  V.  Bernard.  3  Ld.  Raym.  909.        *  Woodman  v.  Hubbard,  25  N.  H.  67. 
-'Stewart  v.  Davis,  31  Ark.  518.  5  133  Mass.  270. 

3  Spooner  V.  Manchester,  133  Mass.        ^Farkas    v.    Powell,    86    Ga.   800; 
Tid.  Love  joy  v.  Jones,  30  N.  H.  164;  Jolin- 

76 


CU.   IX.]  LOCATIO    REl.  [§§   128,   129. 

§  128.  Exercising  iinautliorizefl  dominion  and  con- 
trol over  property —  Conversion. —  Conversion  is  a  question 
more  or  less  of  intention.  There  are  some  acts  upon  the  part 
of  the  bailee  which  would  clearly  prove  such  intentional  con- 
version of  the  property;  as,  for  example,  an  unauthorized  sale 
of  the  property.^  In  such  case  the  bailor  may  take  his  choice 
of  actions;  he  may  sue  the  bailee  for  conversion  of  the  prop- 
erty in  an  action  of  trover,  or  bring  an  action  of  replevin 
against  his  vendee  for  the  recovery  of  the  specific  property, 
or,  if  on  demand  the  vendee  refuses  to  yield  up  the  prop- 
erty, the  bailor  may  bring  an  action  of  trover  as  for  conver- 
sion, or  he  may  affirm  the  sale  and  recover  from  the  bailee 
the  amount  of  the  purchase  price.  The  supreme  court  of  ISTew 
Jersey  in  the  case  of  N.  Y.,  L.  K  &  W.  Ey.  Co.  v.  N.  J.  Elec- 
tric Ey.  Co.!^  held  that  "  a  bailor  need  not  look  alone  to  his 
bailee  for  a  wrong  by  a  third  party  in  connection  with  the 
bailee  done  to  the  chattel  which  is  the  subject  of  the  bailment 
for  hire.  If  the  bailee  assumes  to  pledge  or  sell  the  bailed 
goods  as  his  own,  such  an  act  amounts  to  a  conversion,  and  the 
bailor  may  at  once  commence  his  action  against  the  third  party 
in  whose  possession  the  property  is  found.  While  a  mere  misuse 
may  not  terminate  the  bailment,  yet  when,  by  the  negligence 
of  the  bailee,  either  alone  or  in  conjunction  with  the  negligence 
of  a  third  party,  the  chattel  bailed  is  no  longer  fit  and  suitable 
for,  and  cannot  be  devoted  to,  the  use  for  which  it  was  hired, 
the  bailment  is  at  an  end,  and  the  bailor  can  maintain  his  ac- 
tion for  the  injury  done  to  it." 

§  121).  Bailor's  right  against  third  party — against  bailee. 
In  the  ordinary  bailment  the  bailee  has  the  right  to  the  possession 
of  the  property  during  the  existence  of  the  bailment  relation, 
and,  as  we  have  seen,  by  reason  of  his  right  to  the  possession  he 
can  defend  against  the  bailor  or  third  parties  for  any  unauthor- 
ized interference ;  but  while  the  bailee  is  entitled  to  this  exclusive 
possession  of  the  property  for  the  purposes  of  the  bailment,  the 
bailor  in  the  usual  bailment  has  a  fixed  reversionary  interest 
in  the  personal  property.  He  is  entitled  to  the  redelivery  of 
the  property  at  the  expiration  of  the  bailment  relation  in  as 

son  V.  Miller,  16  Oliio,  431;  Rankin        200  N.  J.  L.  838,  38  Atl.  828;  Story, 
V.  Shepherdson.  89  111.  445.  Bailments  (9th  ed.),  sec.  413;  Enos  v. 

1  Rankin  v.  Shepherdson,  89  111.  455.     Cole,  53  Wis.  235. 

77 


§   130.]  OKDINARY    BAILMENTS,  [PART    I, 

good  condition  as  when  the  possession  of  the  same  was  de- 
livered to  the  bailee.  It  therefore  follows  that  the  bailor  must 
have  the  right  to  defend  his  title  to  the  property  and  to  sus- 
tain an  action  against  either  third  parties,  or  even  against  the 
bailee,  for  any  trespass,  for  any  use  of  it  that  is  injurious  to  it, 
or  which  would  depreciate  its  value  when  it  comes  to  his  hands, 
or  that  might  result  in  the  destruction  of  the  property.^ 

§  130.  Bailee's  liability  to  third  parties  for  negligent  use — 
Bailee's  negligence  not  imputable  to  bailor. —  The  bailee,  hav- 
ing absolute  and  entire  control  of  the  possession  and  use  of  the 
property  bailed,  necessarily  becomes  liable  to  third  parties  who 
may  be  injured  by  reason  of  the  negligent  use  of  the  property; 
not  only  does  this  liability  attach  because  of  the  negligent  use 
of  the  property  by  the  bailee  in  person,  but  the  bailee  is  also 
liable  for  the  negligence  of  his  servants  in  respect  to  the  bail- 
ment; but  in  no  case  can  it  be  said  that  the  servants  of  the 
bailee,  in  a  bailment  for  hire,  are  the  servants  as  w^ell  of  the 
bailor.  And  so  it  follows  that  the  bailor  is  not  responsible  to 
third  parties  for  the  negligent  use  of  the  property  by  the  serv- 
ants of  the  bailee,  or  by  the  bailee  himself.  The  bailee  does 
not  stand  in  the  place  of  the  bailor;  he  does  not  represent  him 
in  such  a  relation  as  would  render  the  bailor  liable  for  his  neg- 
ligent acts,  or  for  the  negligent  acts  of  his  servants  or  agents;- 
and  so,  while  in  an  action  brought  by  the  bailee  against  third 

1 N.  Y.,  L.  E.  &  West.  R.  Co.  v.  N.  J.  would  furnish  a  driver  if  it  was  nec- 

Electric  Co.,  38  Ati.  828,  CO  N.  J.  Law,  essaiy.     B.  directed  an  incompetent 

338.  man  to  drive  the  horse,  who  backed 

'■^Hofer    V.   Hodge,  52    Mich.  372.  him  off  the  dock  and  the  horse  was 

The  bailee  of  a  chattel  is  liable  for  drowned.     Held,  that  the  driver  was 

the  negligence  of  a  person  employed  the  servant  of  B.,  and  that  ordinary 

by  iiiin  to  use  it.     Hall  v.  Warner,  care  was  requii-ed  in  the  use  of  the 

(50  Barb.  198:  Mims  v.  Mitchell,  1  Tex.  property.     Hofer  v.  Hodge,  52  Midi. 

443.     Where  cotton  was  sent  to  be  372,  18  N.  W.  112,  50  Am.  Rep.  256. 

ginned    and    was    destroyed    by    a  Where  a  bailee  of  goods  intrusted  to 

fire   that   threatened  the  gin-house,  him  to  do  work  upon  them,  with  the 

througli  the  negligence  of  the  bailee's  knowledge  and  privity  of  the  bailor 

servants,  he  was  held  liable   to  the  employs  another  to  aid  in  doing  the 

owner.  (Ala.,  1828)  Maxwell  v.  Eason,  work,  and  through  the   negligence 

1  Stew.  514;  McCaw  v.  Kimbrel,  44  and   unskilfulness  of  the  latter  the 

McCord.  220.  A.  was  under  a  contract  goods  are  injured,  the  owner  may 

with  B.  to  do  hauling,  A.'s  teamster  maintain    an    action     against    him 

being  employed.     The  teamster  fell  therefor.  Baird  v.  Daly,  57  N.  Y.  236. 

sick  and  A.  took  the  horse  and  cart  to  15  Am.  Rep.  488,  reversing  (1871)  4 

B.,  who  told  him  to  leave  them  and  he  Lans.  426. 


Cli.    I  X.J  LOCATIO    KEI.  [§   131. 

parties  for  injuries  to  the  property,  the  third  party  may  defend 
in  the  action  upon  the  ground  of  contributory  negligence  upon 
the  part  of  the  bailee,  his  servants  or  agents,  in  an  action  by 
the  bailor,  who  is  the  owner  of  the  property,  against  a  third 
party  for  injury  to  the  bailment,  the  negligence  of  the  bailee, 
or  his  servants  or  agents,  would  be  no  defense  and  would  not 
prevent  a  recovery,  for  the  reason  that  such  negligence  is  not 
imputable  to  the  bailor. 

§  131.  Bailee's  right  iiiider  certain  circiinistarices  to  assign 
his  interests.—  In  the  ordinary  bailment  relation,  the  nature 
of  the  bailment  and  the  object  to  be  effected  by  it  forbids  that 
the  bailee  should  have,  or  should  be  regarded  as  having,  any 
assignable  interest;  and  as  a  general  rule  any  attempt  upon 
the  part  of  the  bailee  to  make  such  an  assignment  would  be 
considered  as  a  termination  of  the  bailment  and  a  conversion 
of  the  property,  and  the  assignee  would  not,  by  reason  of  the 
assignment,  acquire  any  interest  in  the  property.  Such  would 
be  the  rule  in  all  cases  where  the  bailment  can  properly  be  re- 
garded as  a  personal  trust  in  the  bailee ;  and  such  is  the  case 
where  the  bailment  is  at  will,  that  is,  during  the  pleasure  of 
both  parties.  There  is,  however,  a  large  class  of  bailments, 
where  the  bailment  contract  gives  to  the  bailee  an  interest  in 
the  property  not  incident  to  a  simple  bailment;  and  where  there 
is  no  personal  confidence,  and  where  it  would  be  entirely  in 
accord  with  the  contract  creating  the  bailment,  it  was  held 
that  the  bailee  had  an  assio-nable  interest  which  mif^ht  be  trans- 
ferred  to  a  third  party;  such  assignment  not  affecting  the  pur- 
pose of  the  bailment,  but  rather  being  entirely  harmonious  with 
the  purpose  and  design  of  the  parties.  Examples  may  be  found 
where  resident  property  is  leased  for  a  term  of  years  with  fur- 
niture for  the  use  of  the  lessee.  If  in  such  case  there  is  nothing 
to  prevent  the  lessee  from  subletting  the  property,  he  may  sub- 
let the  property  and  assign  his  right  to  the  use  of  the  furniture. 
So  in  leases  of  farm  property  where  the  farming  implements 
and  stock  are  upon  the  farm,  the  lessee,  of  course,  becomes 
the  bailee  of  this  personal  property,  and  upon  subletting  the 
premises  could  assign  his  interest  as  bailee  in  the  personal 
property.^ 

1  Vincent  v.  Cornell,  13  Pick,  394;  Bailey  v.  Colby  et  al,  34  N.  H.  29. 

79 


§§  132,  133.]  ORDINAET    BAILMENTS.  [PAET   I. 

§  13*2.  Extraordinary  and  incidental  expenses. —  This  sub- 
ject lias  already  been  discussed,^  and  we  need  say  no  more  with 
reference  to  it  except,  perhaps,  to  restate  the  rule  that  the 
bailor  would  be  liable  for  any  extraordinary  expenditures; 
while  for  the  usual  incidental  expenses  the  bailee  would  be 
liable  during  the  use  of  the  property  bailed. 

§  133.  Termination  of  the  bailment. —  Nothing  further 
need  be  said  with  reference  to  the  termination  of  the  bailment, 
as  it  has  already  been  discussed.^ 

1  Ante,  §  110.  2  Ante,  ch.  V. 

80 


CHAPTER  X. 


LOCATIO  OPERIS  BAILMENTS. 


§  134.  The  hiring  of  labor  and  serv- 
ice upon  the  thing. 

135.  Locatio  operis  faciendi  —  The 

hiring  of  work  and  labor 
upon  the  thing. 

136.  Contract  relation. 

137.  The    obligations  of    the   em- 

ployer, the  bailor. 

138.  Bailee  has  a  special  property 

in  the  thing. 

139.  Whether  a  sale  or  bailment. 

140.  When  product  from  material 

furnished  and  labor  to  be 
sold  and  profits  divided. 

141.  If  the  thing  is  destroyed  dur- 

ing the  carrying  out  of  the 
agreement  or  after  finished. 

142.  The  duty  of  the  bailee. 

143.  If  the  work  is  to  be  performed 

by  the  job,  and  loss  or  in- 
jui'y  occur  before  comple- 
tion. 

144.  The  work  must  be  done  as 

contracted. 

145.  . 

146.  Summary  of    the    discussion 

thus  far. 

147.  Not  every  failure  to  perform 

contract  obligations  will  de- 
prive bailee  of  entire  com- 
pensation. 

148.  If  the  failure  to  perform  is  the 

fault  of  the  bailor. 

149.  Inevitable    accident  or    irre- 

sistible force. 

150.  Reclaiming  the  property. 


§  151.  Generally  bailee  may  do  the 
work  by  an  agent  or  serv- 
ant. 

152.  Where  skill  as  well  as  care  is 

required. 

153.  He  must  exercise    the    skill 

adequate  to  the  proper  per- 
formance of  the  work. 

154.  If  the  bailee  for  hire  purports 

to  have  skill  he  must  use  it. 

155. Ordinary  skill  required. 

156.  The  degree  of  skill  and  dili- 

gence increases  in  certain 
cases. 

157.  Skilled  work  by  an  agent  or 

servant. 

158.  Defenses  of  the  bailee. 

159.  Notice    to    the     bailor    that 

claims  for  defects  must  be 
made  within  a  certain  time. 

160.  Title  to  the  material  used  by 

bailee  passes  to  bailor  by 
accession. 

161.  The  lien  of  the  bailee  in  lo- 

catio operis  faciendi  bail- 
ments. 

162.  Priority  of  the  lien. 

163.  Agisters     and     livery-stable 

men  —  No  lien  at  common 
law. 

164.  Lien  by  statute. 

165.  Chattel  mortgage  takes  prece- 

dence over  lien. 

166.  Other    questions     previously 

discussed. 


§  134.  The  hiring:  of  labor  and  service  npon  the  thing. — 

This  embraces  a  largo  class  of  bailments,  and,  for  a  clearer 
understanding  and  discussion  of  the  subject,  has  been  divided 
into  — 

1st.  '■^Locatio  operis  faciendi,^^  the  letting  of  work  and  labor 
to  be  done  upon  the  thing  for  hire. 
6  81 


§  135.]  ORDINARY    BAILMENTS.  [PART   I. 

2d.  ^^Locatio  custodier,''''  the  letting  of  care  and  custody  of 
the  thing  for  hire;  and, 

3.  '■'■Locatio  ojperis  mercium  veliendarum^''  the  letting  of  labor 
in  the  carrying  of  goods  from  place  to  place,  embracing  that 
very  important  business  of  carriers  of  goods,  public  and  pri- 
vate. 

In  this  chapter  we  shall  discuss  the  subdivision  of  the  operis 
bailments,  leaving  others  for  later  chapters. 

§  135.  Locatio  operis  faciendi  —  The  hiring  of  work  and 
labor  upon  the  thiug. —  From  the  consideration  of  the  letting 
and  hiring  of  the  thing  discussed  in  the  last  chapter,  we  are 
led  to  the  consideration  of  the  letting  of  labor  upon  the  thing, 
or,  as  it  is  more  generally  called,  the  hiring  of  labor  and  serv- 
ice upon  the  thiug.  This  belongs  to  the  hiring  bailments.  The 
benefits  are  mutual  to  bailor  and  bailee;  but  whereas  in  the 
last  chapter  we  noticed  that  the  bailee  was  the  party  to  pay 
the  consideration  for  the  use  of  the  thing  hired,  here  the  bailor, 
by  the  terms  of  the  contract,  express  or  implied,  is  the  party 
who  must  pay  the  bailee  for  the  labor  and  service  bestowed 
upon  the  subject  of  the  bailment  —  the  thing.  The  bailor  is  the 
hirer  of  the  labor  and  service  upon  the  thing,  the  subject  of 
the  bailment,  which  is  his  own  property,  or  under  his  control 
for  the  purposes  of  the  bailment. 

The  jobber  sends  his  cloths  to  a  factory  to  be  manufactured 
into  clothing,  for  which  he  contracts  to  pay;  or,  a  person 
takes  cloth  to  a  tailor  to  be  made  into  a  coat,  for  which  he 
is  to  pay  a  certain  sum  of  money.  The  person  furnishing  the 
cloth  is  the  bailor  —  the  hirer;  the  tailor,  or  person  manufact- 
uring the  coat  or  clothing,  doing  the  labor  and  service,  is  the 
bailee. 

One  carries  his  watch  to  the  jeweler  to  be  repaired,  or  a 
jewel  to  have  him  set  it  with  gems  which  he  furnishes.  One 
takes  his  material,  lumber,  etc.,  to  the  boat-builder  to  have 
him  construct  a  boat,  or  his  boat  to  be  repaired. 

ISTow,  it  will  be  observed  that  the  workman,  the  bailee,  is  the 
custodian  of  the  property  as  well  as  the  one  who  contracts  to 
bestow  the  labor  upon  the  thing.  Examples  are  numerous,  but 
enough  has  been  noted  to  call  attention  to  the  nature  and  kind 
of  bailment  we  have  under  discussion. 

«3 


CH.  X.]  LOCATIO    OPEEIS    BAILMENTS.  [§§  136-138. 

§  136.  Contract  relation. —  This  class  of  bailments  is  also  a 
contract  relation  either  express  or  implied,  and  the  duties  and 
liabilities  of  the  parties  are  generally  settled.  Those  duties 
and  liabilities  may  to  a  certain  extent  be  limited  or  enlarged 
by  express  contract,  but  if  the  relation  rests  in  implied  con- 
tract, the  law  is  well  settled  as  to  the  extent  of  the  rights  of 
the  parties. 

§  137.  The  obligations  of  the  employer,  the  bailor. — 
Generally  speaking,  the  law  imposes  upon  the  bailor,  the  em- 
ployer, if  the  relation  is  by  implied  contract,  the  following  du- 
ties or  obligations: 

(1)  To  do  everything  consistent  with  the  employment  to  be 
performed  on  his  part  to  enable  the  workmen  to  execute  the 
engagement. 

(2)  To  pay  for  all  necessary,  new  or  accessorial  materials. 

(3)  To  pay  the  price  or  compensation  that  is  to  be  paid  for 
the  work  as  agreed. 

(4)  And  finally,  to  accept  the  thing  when  it  is  finished. 
On  the  other  hand  it  is  the  duty  of  the  bailee: 

(1)  To  receive,  care  for  and  keep  all  material  furnished  until 
the  contract  is  carried  out,  or  is  determined. 

(2)  To  perform  the  service  in  good  faith  and  as  required  by 
the  undertaking. 

(3)  To  do  the  work  and  produce  the  result  of  the  undertak- 
ing within  the  time  agreed. 

(4)  To  perform  the  work  well,  using  the  skill  and  judgment 
required  and  which  the  workman  claimed  would  be  used  upon 
the  subject-matter  of  the  bailment. 

(5)  To  use  and  employ  the  material  in  a  proper  manner. 

(6)  To  exercise  good  faith  and  honest  dealing  in  carrying  out 
the  undertaking. 

(7)  To  exercise  that  degree  of  diligence  in  all  branches  of 
the  performing  of  the  service  and  using  material  and  accomplish- 
ing the  object  of  the  undertaking  that  is  required  by  law  in 
such  like  cases. 

(8)  To  deliver  the  property  to  the  bailor  when  the  bailment 
contract  is  fulfilled  or  otherwise  terminated. 

§  138.  Bailee  has  a  special  property  in  the  thing. —  In  this 
class  of  bailments,  from  its  very  nature,  it  will  be  seen  that  the 
bailee  not  only  has  the  right  to  the  possession,  but  has  a  special 

83 


§  139.]  ORDINARY    BAILMENTS.  [PAKT    I. 

property  in  the  thing  bailed,  and  perhaps  a  greater  interest 
than  in  other  classes  of  bailment,  because  in  the  performance 
of  the  bailment  he  necessarily  mingles  with  the  property  of  the 
bailor  furnished  to  him  his  labor,  and  often  material,  in  order 
to  carry  out  the  contract;  and  more  than  this,  he  has  the  prop- 
erty by  contract  and  is  employed  to  do  upon  it  certain  work 
and  labor,  and  thus  reap  a  benefit  to  himself.  And  so  it  follows 
that,  as  the  bailment  advances,  the  interest  of  the  bailee  must 
increase  in  value;  so  it  has  been  held  that  the  bailee  may  main- 
tain trover  or  replevin  against  a  party  who  undertakes  to 
deprive  him  of  it,  even  against  the  bailor  if  he  should  so  under- 
take before  the  time  stipulated  for  the  carrying  out  of  the 
contract,  or  before  the  bailee  has  made  such  default  as  would 
terminate  the  relation.  And  so  the  bailee,  without  question, 
cannot  only  maintain  an  action  against  third  parties  for  an 
injury  to  his  possession,  and  as  to  that  he  is  the  only  party  who 
can  during  the  continuance  of  the  bailment  maintain  such  an 
action,  but  the  general  current  of  authority  seems  to  be  that 
the  bailee  can  include  in  such  suit  damages  for  the  entire  injury 
to  the  subject  of  the  bailment;  but  while  this  right  of  action 
is  given  the  bailee,  no  case  can  be  found  that  denies  the  right 
of  the  bailor  to  sue  and  recover  for  the  permanent  injury  to  the 
property,  even  before  the  expiration  of  the  bailment.  This  is 
upon  the  principle  that  the  bailor  has  a  reversionar}^  interest 
in  the  property,  and  one  having  such  an  interest  has  a  right  to 
sue  one  who  is  not  in  possession  thereof  for  an  injury  to  such 
property  which  will  depreciate  its  value  when  it  comes  to  his 
hands,  and  is  entitled  to  recover  damages  to  the  extent  of  the 
injury.  This  right  of  action  also  obtains  in  case  of  personal 
property.^ 

§  139.  Whether  a  sale  or  bailment. —  It  is  contemplated  in 
this  class  of  bailments  that  the  bailor  furnishes  to  the  bailee  the 
thing  or  the  materials  from  w^hich  the  thing  is  to  be  produced, 
and  that  the  bailee,  the  workman,  is  to  produce  the  thing,  or,  if 
a  thing  that  has  already  been  produced  and  is  delivered  to  him 
for  repairs,  to  make  such  repairs  upon  it;  that  the  property,  the 
thing  or  the  materials,  are  the  property  of  the  bailor,  to  which 

1  Sherman  &  Redf.  Neg.,  sec.  119;     W.  R,  R.  Co.,  61  N.  J.  L.  287,  43  L.  R. 
Howard  v.  Farr,  18  N.  Y.  457;  N.  J.     A.  849;  Brief,  43  L.  R  A.,  p.  853. 
Electrical  Ry.  Co.  v.  N.  Y.,  L.  E.  & 

84 


CH.  X.J  LOCATIO    OPERIS    BAILMENTS.  [§  140. 

is  to  be  added  the  service,  work,  or  skill  of  the  bailee.  As,  for 
example,  the  cloth  taken  to  the  tailor  to  manufacture  coats, 
the  undertaking  or  bailment  contract  being  that  for  a  certain 
consideration  the  workman,  from  the  cloth  furnished  him,  will 
furnish  to  the  bailor  a  certain  number  of  coats  manufactured; 
this  would  be  a  bailment  contract,  the  manufactured  coats 
would  be  the  property  of  the  bailor.  Nor  is  it  necessary  that 
the  bailor  should  furnish  all  of  the  material,  nor  does  the  law 
lay  down  any  fixed  or  settled  rule  as  to  just  what  proportion 
of  the  material  must  be  furnished  in  order  that  the  bailment 
should  be  sustained ;  but  in  cases  where  the  bailor,  or  employer, 
did  not  furnish  any  of  the  material,  as,  for  example,  in  a  case 
where  the  undertaking  was  on  the  part  of  the  workman  to  fur- 
nish to  the  employer  a  certain  number  of  coats,  the  workman 
furnishing  both  material  and  labor,  there  could  be  no  question 
but  that  such  an  agreement  would  be  a  contract  of  sale  and 
not  of  bailment.  This  question  will  be  met  as  we  come  to  con- 
sider the  liability  of  the  parties  in  cases  where  the  property  is 
lost  or  injured. 

While  there  is  no  fixed  or  settled  rule  as  to  the  proportion 
of  the  material  the  bailor  or  employer  is  bound  to  furnish  in 
order  to  establish  the  bailment  relation,  it  seems  to  be  gener- 
ally conceded  that  the  bailor  should  furnish  the  principal  part 
of  the  material. 

§  140.  When  i)roduct  from  material  furnished  and  labor 
to  be  sold  and  profits  divided. —  Considerable  discussion  has 
been  had  as  to  whether,  where  material  has  been  furnished 
by  the  bailor  to  be  wrought  upon  by  the  bailee,  the  product 
of  the  material  and  labor  to  be  sold  in  the  market,  and  the 
net  profits  obtained  from  the  material  to  be  divided  between 
the  bailor  and  bailee,  it  is  a  bailment  relation  or  a  mere  joint 
undertaking  or  a  partnership  agreement.  A  late  case  in  the 
state  of  New  York,  Sattler  v.  Hallock,^  has  discussed  this  ques- 
tion, holding  that  in  such  case  the  relation  is  a  bailment  rela- 
tion; and  in  an  earlier  case,  Gregory  v.  StryTcer^-  the  court  say: 
"Various  cases  have  arisen  in  which  property  in  a  raw  state 
was  delivered  by  one  person  to  another  upon  agreement  that 
it  should  be  wrought  upon  and  improved  by  the  labor  and 
skill  of  the  bailee,  and  when  thus  improved  in  full  should  be 

1 15  App.  Div.  Sup.  Ct.  N.  Y.,  p.  500.        ^  %  Denio,  031. 

85 


§  140.]  ORDINARY    BAILMENTS.  [PAET    I. 

divided  in  certain  portions  between  the  respective  parties,  and 
in  which  it  was  held  that  the  original  owner  retained  his  ex- 
clusive title  to  the  property  until  the  contract  had  been  com- 
pletely executed,  and  this,  notwithstanding  the  labor  to  be 
performed  by  the  bailee  might  be  equal  or  even  greater  in 
value  than  that  of  the  property  when  received  by  him." 

And  where  plaintiff  and  his  assignors  entered  into  an  agree- 
ment with  the  defendant  by  which  the  defendant  agreed  to 
manufacture  cheese  and  butter  from  milk  delivered  at  his 
factory  by  the  plaintiff,  and  his  assignors  to  sell  the  product 
and  distribute  the  proceeds  according  to  a  contract  between 
them,  the  factory  having  been  destroyed  by  fire,  and  a  quan- 
tity of  the  milk,  butter  and  cheese  thereby  lost,  in  an  action  to 
recover  the  amount  of  the  loss  it  was  held  that  the  contract 
was  one  of  bailment,  and  defendant  assumed  simply  the  duty 
to  exercise  ordinary  care  to  protect  and  preserve  the  property; 
that  the  burden  of  the  proof  was  upon  the  plaintiff  to  show  a 
failure  to  perform  his  duty;  that  no  presumption  of  negligence 
arose  from  the  fact  that  the  loss  resulted  from  the  fire.  The 
court  say : 

. "  It  is  true  that  where  an  absolute  executory  contract  is 
made,  the  contractor  is  not  excused  from  inability  to  execute 
it  caused  by  unforeseen  accident  or  misfortune,  but  must  per- 
form or  pay  damages  unless  he  has  protected  himself  against 
such  contingency  by  stipulation  in  the  contract.  But  there 
ma^'^  be  in  the  nature  of  a  contract  an  implied  condition  by 
which  he  will  be  relieved  from  such  unqualified  obligation,  and 
when  in  such  case,  without  his  fault,  performance  is  rendered 
impossible,  it  may  be  excused.  That  is  so  when  it  inherently 
appears  to  have  been  known  to  the  parties  to  the  contract, 
and  contemplated  by  them  when  it  was  made,  that  its  fulfill- 
ment would  be  dependent  upon  the  continuance  or  existence, 
at  the  time  for  performance,  of  certain  things  or  conditions 
essential  to  its  execution.  Then  in  the  event  they  cease,  be- 
fore default,  to  exist  or  continue,  and  thereby  performance 
becomes  impossible  without  his  fault,  the  contractor  is,  by  force 
of  the  implied  condition  to  which  his  contract  is  subject,  re- 
lieved from  liability  for  the  consequences  of  his  failure  to  per- 
form. 

By  the  contract  now  under  consideration,  the  cheese  and 


CH.  X.] 


LOCATIO    OPEEIS    BAILMENTS. 


[§  140. 


butter  were  to  be  manufactured  at  this  factory,  and  to  be  made 
from  the  milk  furnished  by  the  patrons,  of  which  the  plaintiff 
and  his  assignors  were  members.  The  existence  of  that  particu- 
lar factory  was  terminated  by  its  destruction,  and  the  loss  with 
it  of  the  manufactured  product  and  of  the  milk  then  remaining 
there  unconverted  into  cheese  and  butter  rendered  it  impos- 
sible for  the  defendant  to  further  proceed  with  the  perform- 
ance of  the  contract  in  respect  to  those  articles  of  material 
and  product.  And  as  the  nature  of  the  agreement  was  such 
that  it  must  be  deemed  to  have  been  contemplated  by  the  par- 
ties to  it  that  the  articles  to  be  manufactured  should  be  made 
only  from  the  materials  furnished  by  the  patrons  and  at  the 
factory  referred  to,  there  was  necessarily  an  implied  condition 
so  qualifying  the  defendant's  undertaking  as  to  relieve  him 
from  performance  rendered  impossible  without  his  fault,  and 
from  the  consequences  of  his  inability  thus  occasioned  to  ful- 
fill his  contract  in  respect  to  the  subject  of  the  bailment  which 
was  destroyed  by  the  fire."  * 


1  Stewart  v.  Stone,  127  N.  Y.  500.  mill  that  he  would  saw  them  into 
In  Hyde  v.  Cookson,  21  Barb.  92,  boards,  and  that  each  party  should 
there  was  a  written  agreement  be-  have  one-half.  It  was  held  that  the 
tween  the  plaintiffs  and  one  Osborn  transaction  was  a  bailment;  that  the 
in  relation  to  tanning  a  quantity  of  bailor  retained  his  general  property 
hides.  The  hides  were  to  be  fur-  in  the  logs  until  they  were  all  manu- 
nished  by  the  plaintiffs  on  a  commis-  factured  in  pursuance  of  the  con- 
sion  of  five  per  cent,  for  buying  and  tract;  and  that,  as  between  the  par- 
six  per  cent,  for  selling  the  leather,  ties,  the  bailee  acquired  no  interest 


Osborn  was  to  take  the  hides  to  his 
tannery,  manufacture  them  into 
hemlock  sole  leather,  and  return  it 
to  the  plaintiffs,  who  were  to  sell  it 
in  their  discretion.  When  sold,  the 
account  was  to  be  made  up,  and  the 
net  proceeds  of  the  sales,  after  de- 
ducting the  costs  of  hides,  commis- 
sions, interest,  insurance  and  other 
expenses,  were  to  be  the  profit  or  loss 
to  accrue  to  Osborn  in  full  for  tan- 
ning the  hides;  and  it  was  held  that 
this  was  not  a  contract  of  sale,  but 
of  bailment,  and  that  the  title  re- 
mained in  the  plaintiffs.  In  Pierce 
V.  Schenck,  3  Hill,  28,  logs  were  de- 
livered at  a  saw-mill  under  a  con- 
tract with  the  person  running  the 


in  any  of  the  boards  manufactured 
by  mere  part  performance  within 
the  time.  In  Mallory  v.  Willis,  4  N.  Y. 
76,  the  plaintiffs  agreed  to  deliver 
merchantable  wheat  at  a  flour-mill 
carried  on  by  the  defendant,  to  be 
manufactured  into  flour.  The  de- 
fendant agreed  to  deliver  one  hun- 
dred and  ninety-six  pounds  of  super- 
fine flour,  packed  in  barrels  to  be 
furnished  by  the  plaintiffs,  for  every 
four  bushels  and  fifteen  pounds  of 
wheat.  He  was  to  be  paid  sixteen 
cents  per  barrel,  and  two  cents  extra 
in  case  the  plaintiffs  made  one  shil- 
ling net  profit  on  each  barrel  of  flour. 
The  defendant  was  to  guaranty  the 
inspection.     The  plaintiffs   were  to 


87 


§§  141,  142.]  OKDINAEY    BAILMENTS.  [PAKT    I. 

§  141.  If  the  thing  is  destroyed  during  the  carrying  out 
of  the  agreem  eut,  or  after  finished. —  It  will  be  observed  that 
by  the  very  nature  of  the  bailment  relation  that  is  created  in 
this  class  of  bailments  the  title  to  the  property  remains  in  the 
bailor  during  the  time  that  the  work  and  service  is  being  per- 
formed upon  it  by  the  bailee,  and  therefore  it  follows  that  if 
the  property  should  be  destroyed  at  any  time  by  reason  of  in- 
ternal defects,  inevitable  accident  or  irresistible  force,  and 
without  the  fault  or  negligence  of  the  workman,  the  bailee,  the 
loss  would  necessarily  fall  upon  the  bailor;  and  because  the 
thins:  under  such  circumstances  at  the  time  of  the  loss  was~the 
property  of  the  bailor  with  all  the  labor  and  accessorial  mate- 
rial added,  it  necessarily  follows  that  the  workman  would  be 
entitled  to  recover  from  the  bailor  comjiensation  for  the  labor 
he  had  b  estowed  upon  the  thing  up  to  the  time  it  perished  or 
was  destroyed,  and  would  also  be  entitled  to  compensation  for 
an}--  material  furnished  by  him  in  carrying  out  the  undertaking. 

You  cannot  but  notice  here  that  the  rule  would  be  very  dif- 
ferent in  the  case  noted  in  a  former  paragraph  were  the  work- 
man, or  the  bailee,  furnished  all  of  the  material  as  well  as  all 
the  labor,  and  from  the  material  and  the  labor  was  to  produce 
for  the  employer  certain  manufactured  articles;  in  such  case, 
if  the  articles  in  process  of  manufacturing,  or  after  they  were 
completed,  but  before  delivery,  should  be  destroved,  the  work- 
man could  not  recover  from  the  employer  compensation  for  his 
labor  and  material,  for  the  reason  that  in  such  case  the  thing 
would  not  be  the  property  of  the  purchaser,  but  would  be  the 
property  of  the  workman. 

§  142.  The  duty  of  the  bailee. — The  bailment  relation 

here  created  is  one  for  the  benefit  of  both  bailor  and  the  bailee, 
and  therefore  ordinary  diligence  is  required  and  the  parties 

have  the  offals  or  feed,  which  the  the  defendant  one  thousand  pairs  of 
defendant  was  to  store  until  sold,  pruning  shears,  to  be  in  all  respects 
This  court  held  in  that  case  that  the  like  a  sample  furnished,  the  def end- 
contract  imported  a  bailment,  and  ants  to  furnish  the  rough  castings 
not  a  sale.  The  doctrine  of  that  case  for  the  handles  and  the  plaintiff  to 
was  indorsed  in  Foster  v.  Pettibone,  furnish  the  blades.  It  was  held  that 
7  N.  Y.  433.  In  Mack  v.  Snell,  140  the  contract  was  one  of  bailment, 
N.  Y.  193,  35  N.  E.  493,  the  parties  and  not  of  purchase  and  sale,  so  that 
entered  into  a  contract  by  which  the  the  title  to  the  shears  manufactured 
plaintiff  agreed  to  manufacture  for  was  at  all  times  in  the  defendant 

88 


on.  X.]  LOCATIO    OPERIS    BAILMENTS.  [§  143. 

are  liable  for  ordinary  negligence.  As  we  have  noticed,  it  is 
the  duty  of  the  bailee  to  receive  and  care  for  and  keep  the 
materials  or  things  furnished  for  the  undertaking  until  a  de- 
livery  to  the  bailor  according  to  the  contract,  or  until  for  other 
reasons  the  bailment  is  terminated ;  to  perform  the  services  in 
good  faith,  and  as  required  by  the  undertaking;  to  do  the  work 
well  and  produce  the  result  of  the  undertaking  within  the 
time  agreed;  to  use  the  skill  and  diligence  required,  or  the 
skill  and  judgment  claimed  by  him,  the  bailee,  to  be  required, 
and  that  he  will  exercise  good  faith  in  all  things  pertaining 
to  the  contract,  and  deal  honestly;  and  redeliver  the  prop- 
erty to  the  bailee  when  the  contract  is  fulfilled.  That  is  to 
say,  the  duty  of  the  bailee  is  that  in  exercising  all  and  each 
of  these  requirements  he  must  use  ordinary  diligence,  and  if  he 
fails  to  do  so  and  injury  results  therefrom  to  the  bailor,  he  will 
be  liable  therefor.  If,  however,  the  injury  was  the  result  of 
failure  on  the  part  of  the  bailor,  or  the  employer,  to  perform 
his  duty,  and  his  failure  contributed  to  the  injury  or  loss,  it 
would  excuse  the  bailee  from  liability.  The  question  of  lia- 
bility will  be  considered  later. 

§  143.  If  the  work  is  to  be  performed  by  tlie  job  and  loss 
or  injury  occur  before  completion. —  We  have  already  stated 
that  where  the  title  to  the  thing  and  the  materials  furnished 
remains  in  the  bailor,  or  employer,  during  the  performance  of 
the  work  by  the  workman,  and  the  property  is  lost  with- 
out his  fault,  as  by  inevitable  accident,  internal  defects,  or  ir- 
resistible force,  the  workman  is  entitled  to  pay  for  his  labor 
and  for  the  material  furnished.  The  rule,  however,  seems  to 
be  different  where  the  contract  for  the  labor  is  an  entirety, 
as,  for  example,  where  the  labor  is  to  be  performed  by  the  job, 
and  the  loss  occurs  before  the  work  or  the  thing  to  be  produced 
is  completed;  in  such  case  the  rule  is  that  the  thing  would  per- 
ish to  the  employer,  and  the  work  to  the  mechanic.  That  is 
to  say,  the  employer  would  lose  the  material  that  he  had  fur- 
nished for  the  thing  that  was  being  repaired  or  produced,  and 
the  laborer  would  lose  the  labor  that  he  had  bestowed  upon  it. 
If,  however,  it  should  appear  that  the  loss  was  occasioned  by 
reason  of  want  of  diligence  on  the  part  of  the  bailee  in  taking- 
care  of  the  property,  and  that  the  injury  was  the  result  of  his 
fault,  in  such  case  the  bailee  would  have   to  respond  to  the 

89 


§  143.]  ORDINARY    BAILMENTS.  [PAET    I.. 

bailor  in  damages  for  the  loss  of  the  property  thus  occasioned. 
But  if  at  the  time  the  loss  occurred  the  job  had  been  com- 
pleted, but  not  delivered,  it  not  being  the  duty  of  the  bailee 
to  deliver  the  completed  article,  and  the  loss  or  damage  was 
not  the  result  of  his  fault  or  negligence,  the  bailee  would- 
be  entitled  to  compensation  for  his  labor  because  the  title 
to  the  completed  article  would  be  in  the  employer.  This 
is  very  well  illustrated  by  the  court's  opinion  in  Cohen  v. 
Mashkowitz,^  in  a  case  where  defendant  employed  the  plaint- 
iff, a  tailor,  to  put  together  sixty-six  garments;  he  had  a  part 
completed,  but  failed  to  send  them  as  he  agreed  to  do;  on  the- 
night  of  the  day  following  the  day  he  was  to  have  delivered 
the  finished  portion,  the  building  burned  and  the  garments 
were  destroyed.  The  court  say:  "  As  the  material  belonged  ta 
the  defendant,  the  contract  between  him  and  the  plaintiff  was 
one  of  bailment,  and  of  that  class  technically  called  locatio 
operis  faciendi,  applicable  '  to  the  hire  of  tailors  to  make 
clothes,  of  jewelers  to  set  gems,  and  of  watchmakers  to  repair 
watches.'  In  such  a  case,  if,  while  the  work  is  being  done  on  a 
thing  belonging  to  the  employer,  the  thing  perishes  by  internal 
defect  or  inevitable  accident,  without  any  default  of  the  work- 
man, the  latter  is  entitled  to  compensation  to  the  extent  of  his 
labor  actually  performed  on  it,  unless  his  contract  import  a 
different  obligation;  for  the  maxim  is,  ^Res  jperit  domino!' 
The  rule  is  said  to  be:  (1)  If  the  work  is  independent  of  any 
materials  or  property  of  the  employer,  the  manufacturer  has 
the  risk,  and  the  unfinished  work  perishes  to  him;  (2)  if  the 
bailee  is  employed  in  working  up  the  materials,  or  adding  his 
labor  to  the  property  of  the  employer,  the  risk  is  with  the 
owner  of  the  thing  with  w^hich  the  labor  is  incorporated." 

Judge  Storj'  in  his  work  on  Bailments ^  says:  "  But  suppose- 
there  is  a  contract  to  do  work  on  a  thing  by  the  job  (as,  for 
example,  repairs  on  a  ship)  for  a  stipulated  price  for  the  whole 
work,  and  the  thing  should  accidentally  perish  or  be  destroyed 
without  any  default  on  either  side,  before  the  job  is  completed, 
the  question  would  then  arise  whether  the  workman  would  be 

139N.  Y.  S.  1084;  Archer  v.  Mc-        2 Story,    Bailments,    sec.     426;     2 
Donald,  36    Hun,  194;  McConihe  v.     Kent's  Com.  590,  591;  Schouler,  Bail- 
Railway  Co.,  20  N.  Y.  495 ;  Story,  Bail-     ments,  111. 
ments,  sec.  421. 

90 


CH.  X.]  LOCATIO    OPERIS    BAILMENTS.  [§  144r. 

entitled  to  compensation  pro  tanto  for  his  work  and  labor 
done  and  materials  applied  up  to  the  time  of  the  loss  or  de- 
struction. It  would  seem  that  by  the  common  law,  in  such  a 
case  (independent  of  any  usage  or  trade),  the  workman  would 
not  be  entitled  to  compensation,  and  that  the  rule  would  apply 
that  the  thing  would  perish  to  the  employer  and  the  work  to 
the  mechanic;  for  the  contract  by  the  job  would  be  treated  as 
an  entirety,  and  should  be  completed  before  the  stipulated 
compensation  would  be  due." 

§144.  The  work  must  be  done  as  contracted. —  The  em- 
ployer is  entitled  to  have  the  work  done  according  to  the  con- 
tract, and  failure  to  thus  perform  the  work  might  result  in 
non-liability  of  bailor  for  compensation.  In  considering  this 
class  of  contracts  it  must  at  all  times  be  borne  in  mind  that 
the  thing,  the  subject  of  the  bailment  and  of  the  contract,  is  the 
property  of  the  bailor  or  the  employer,  and  the  parties  do  not 
stand  in  the  relation  of  vendor  and  vendee.  The  taking  pos- 
session of  the  property  by  the  bailor  after  the  work  has  been 
performed  is  not  an  acceptance  of  the  work,  or  in  any  sense  a 
waiver  of  the  bailor's  demand  that  the  contract  be  fulfilled. 

If  the  parties  stood  in  the  relation  of  vendor  and  vendee,  or 
buyer  and  seller,  it  would  be  the  duty  of  the  buyer  to  reject 
the  goods  because  of  failure  of  the  seller  to  carry  out  the 
agreement  and  to  act  promptly,  and  if  he  did  not  refuse  the 
goods,  to  express  his  dissent  at  once,  and  thus  enable  the  vendor 
to  protect  his  interest ;  but  in  this  case  the  property  belongs 
to  the  employer;  he  has  a  right  to  it;  and  it  is  a  question  sim- 
ply of  paying  for  the  labor  and  the  accessorial  materials,  and 
so  the  bailor  may  take  the  property  and  refuse  to  pay  for  the 
labor  and  material  because  of  failure  to  do  the  work  as  agreed 
by  the  bailee. 

The  question  has  often  been  raised  where  the  work  was  con- 
tracted to  be  done  according  to  sample,  and  perhaps  this  class 
of  cases  would  more  squarely  raise  the  question.^ 

1  In  Mack  v.  Snell,  140  N.  Y.  193,  tract  in  its  true  scope  and  meaning, 
the  court  held  that  where  the  plaint-  It  is  plain  that  under  the  general 
iff  failed  to  produce  tlie  article  ac-  rule  no  compensation  can  be  de- 
cording  to  the  contract,  the  bailor  manded  by  the  plaintiffs,  as  the  con- 
would  not  be  held  for  compensation,  sideration  upon  which  the  defend- 
The  court  say:  "They  (i)laintiffs)  anfs  promise  rested  has  never  been 
wholly  failed  to  perform  their  con-  furnished.    The  defendant,  it  is  true, 

91 


§§  14:5,  140.]  ORDI^f ARY    BAILMENTS.  [PAET    I. 

§  145.  .     As  we  have  said,  it  is  incumbent  upon  the 

workman  to  do  the  work  in  accordance  with  the  contract  by 
which  it  is  undertaken.  If  the  contract  is  not  written,  there 
are  certain  implied  obligations  that  apply  to  every  undertak- 
ing, and  so  it  may  be  said  that  in  every  case  the  workman  is  , 
bound  to  do  the  work  reasonably  well,  that  is,  in  a  workman- 
like manner,  using  such  skill  and  judgment  as  the  undertakmg 
requires,  and  such  as  the  workman  claims  to  possess;  pro- 
ducing the  result  of  the  undertaking  within  the  time  stipulated 
without  waste  or  damage  to  the  employer;  using  the  material 
furnished  in  a  proper  manner,  and  withal  exercising  good 
faith  in  the  performance  of  the  work.  If,  therefore,  the  work 
has  not  been  so  performed,  if  the  contract  has  not  been  kept, 
but  by  reason  of  the  performance  thereof  on  the  part  of  the 
bailee  a  defense  is  afforded  to  the  employer  against  a  demand 
for  the  payment  of  the  price,  that  the  work  was  defectively  or 
improperlydone,  that  same  defense  will  be  equally  available  to 
the  employer  after  the  loss.  Judge  Story  says,^  "  this  seems  to 
be  the  doctrine  of  the  Eoman  law,"  and  it  is  also  the  doctrine 
of  the  common  law. 

§  146.  Summary  of  the  discussion  thus  far. —  From  what 
has  thus  far  been  stated,  the  matter  of  compensation  for  the 
workman,  the  bailee,  in  these  several  cases  may  be  summed  up 
by  quoting  from  Mr.  Bell's  summary,  and  adding  the  com- 
ments of  Judge  Story. 

Mr.  Bell  says:-  (1)  "If  the  work  is  independent  of  any  ma- 
has  title  to  the  shears,  but  this  is  be-  ant,  it  is  claimed,  operated  in  law  as 
cause  he  owned  the  materials  out  of  an  acceptance  of  the  shears  deliv- 
which  they  wei'e  made;  the  articles  ered,  and  precludes  him  from  claim- 
he  contracted  for  had  never  been  ing  that  those  subsequently  manu- 
furnished.  In  the  place  of  these  factured  of  the  same  kind  were 
were  furnished  articles  useless  and  defective."  The  court  here  distin- 
valueless  because  of  defects  in  con-  guishes  between  the  bailment  con- 
struction not  existing  in  the  sample  tract  and  an  executory  contract  for 
shears.  The  claim  is  made,  however,  the  manufactui-e  and  sale  of  articles 
that  the  plaintiffs  ai-e  entitled  to  re-  of  a  specified  kind,  and  holds  that 
cover  on  the  contract,  not  on  the  the  rules  governing  an  executory 
ground  of  performance,  but  by  rea-  contract  for  manufacturing  the  chat-J 
son  of  the  omission  of  the  defendant  tels  does  not  apply  in  the  case  at^ 
to  reject  and  return  the  shears  deliv-     bar. 

ered.  .  .  .  Or  to  notify  the  plaint-  l  Story,  Bailments,  sec.  420. 
iff  that  they  did  not  conform  to  the  2  Story,  Bailments,  sec.  420. 
contract.    The  silence  of  the  defend- 

93 


CH.  X.J  LOCATIO    OPERIS    BAILMENTS.  [§  147. 

terial  or  property  of  the  employer,  the  manufacturer  has  the 
risk,  and  the  unfinished  work  perishes  to  him.  (2)  If  he  is 
employed  in  Avorking  up  the  materials,  or  adding  his  labor  to 
the  property  of  the  employer,  the  risk  is  with  the  owner  of 
the  thing  with  which  the  labor  is  incorporated.  (3)  If  the 
work  has  been  performed  in  such  a  way  as  to  afford  a  defense 
to  the  employer  against  a  demand  for  the  price,  if  accident 
had  not  happened  (as  if  it  was  defectively  or  improperly  done), 
the  same  defense  will  be  equable  to  him  after  the  loss."  Add 
to  this  the  rule  deduced  by  Judge  Story:  (4)  If  the  work  on 
the  thing  is  by  the  job,  that  is,  for  a  stipulated  price  for  the 
whole  work,  and  the  thing  should  accidentally  perish  or  be 
destroyed  without  any  fault  on  either  side  before  the  job  is 
completed,  independent  of  any  usage  of  trade,  the  rule  would 
apply  that  the  thing  should  perish  to  the  employer  and  the 
work  to  the  mechanic.^ 

§  147.  Not  every  failure  to  perform  contract  obligations 
will  deprive  bailee  of  entire  compensation. —  The  discus- 
sion of  this  would  involve  man}''  contingencies,  more  than 
would  be  profitable  at  this  time  to  discuss,  but  from  the  men- 
tion of  a  few  leading  features  of  the  subdivision  enough  can 
be  said  for  the  present.  It  may  be  generally  stated  that,  if  the 
work  is  being  done  under  a  special  contract,  the  terms  of  that 
contract  must  be  carried  out,  and  if  the  workman  fail  to 
produce  the  thing  as  contracted,  he  will  have  no  remedy 
under  the  contract.  As,  for  example,  if  the  workman  was  to 
build  a  house  according  to  certain  specifications  mentioned 
and  required  to  be  followed  by  a  special  contract  between  the 
parties,  the  workman  could  not  recover  if  he  failed  to  build 
the  house  in  accordance  with  the  specifications;  or,  if  he  does 
the  work  unskilfully  or  improperly,  or  fails  to  complete  it,  he 
could  not  recover  under  the  contract.  If  the  work  is  not  com- 
pleted the  contract  would  be  unexecuted,  and  he  could  not  re- 
cover while  thus  in  default.  The  law  requires  that  he  perform 
his  undertaking. 

And  where  the  workman  does  work  under  a  general  con- 
tract of  hire,  he  is  held  to  a  performance  of  his  contract  and 
to  use  good  faith  in  its  performance;  but  the  rule  of  law  de- 
priving the  workman  of  any  compensation  is  not  so  fixed  as  in 

1  Story,  Bailments,  sec.  426. 
93 


§§  14S,  149.]  OEDINAKY    BAILMENTS.  [PAKT   I. 

case  of  a  special  contract,  and  the  rule  seems  to  have  some- 
what relaxed,  and  may  now  be  said  to  have  settled  down  to 
this:  If  the  work  is  so  badly  and  improperly  done  that  the 
thing  produced  totally  fails  of  being  of  any  use  or  value,  or  is 
wholly  inadequate  to  the  purpose  for  which  it  was  designed, 
the  workman  cannot  recover  any  compensation;  on  the  other 
hand,  he  might  be  liable  to  the  employer  for  the  materials  used 
and  further  damage  if  it  resulted ;  but  if  the  thing  produced 
has  some  value,  although  imperfectly  and  inefficiently  done, 
the  workman,  under  a  quantum  meruit  count,  might  recover 
the  amount  it  would  be  actually  worth  to  the  employer  under 
all  the  circumstances.^ 

If  the  property  or  thing  is  left  unfinished,  or  is  badly  or  un- 
skilfully wrought  upon  by  the  bailee,  all  because  of  the  wan- 
ton and  wilful  neglect  and  refusal  of  the  workman  to  perform 
his  duty  in  this  regard,  the  workman  at  most  could  recover  no 
more  compensation  than  the  amount  remaining  after  deducting 
the  damages  on  account  of  the  injury  resulting  from  his  ac- 
tions from  the  amount  he  was  to  have  received ;  ^  or  the  em- 
ployer may  disregard  him  and  hire  others  to  complete  the 
work  ^nd  pay  them  therefor  out  of  the  contract  price  agreed 
upon  between  the  bailor  and  original  bailee;  the  balance,  if 
any,  would  belong  to  the  bailee,  unless  reduced  by  other  re- 
sulting damages. 

§  148.  If  the  failure  to  perform  is  the  fault  of  bailor. —  It 
goes  without  saying,  that  if  the  bailee  is  prevented  from  exe- 
cuting his  contract  by  reason  of  the  fault  of  the  employer,  as, 
for  example,  by  failing  to  furnish  material  as  stipulated,  or  in 
any  way  hindering  or  obstructing  the  work  of  the  workman, 
or  if  the  plans  were  altered  and  the  work  was  thus  made  more 
difilcult,  in  such  case  the  workman  would  not  be  deprived  of 
compensation  on  account  of  failure  to  complete  the  work  at  the 
time  stipulated,  or  in  accordance  with  former  plans.  And  if 
the  workman  was  prevented  from  completing  the  contract  by] 
the  employer  without  just  cause  or  reason,  he  would  be  enti- 
tled to  recover  what  his  services  were  reasonably  worth,  in  anj 
action  for  work  and  labor  and  material  furnished. 

§  149.  Inevitable  accident  or  irresistible  force. —  And  sol 
if  the  workman  was  prevented  by  reason  of  inevitable  accidentj 

1  Grant  v.  Button,  14  Johns.  377.  2Faxen  v.  Mansfield,  3  Mass.  147. 

94 


■CH.  X.]  LOCATIO    OPEEIS    BAILMENTS.  [§§  150,  151. 

from  performing  the  contract  and  was  in  noway  in  fault  himself, 
be  would  be  excused  for  the  failure  and  would  not  be  deprived 
of  compensation  to  the  extent  of  the  reasonable  worth  of  his 
labor;  but  in  such  case  the  bailor  would  not  be  made  to  suffer 
by  being  compelled  to  pay  for  more  than  was  really  done  upon 
the  contract.  In  all  such  cases  the  bailee  must  be  able  to  show 
that  he  exercised  ordinary  care  and  diligence  to  avoid  the  acci- 
dent or  force,  and  acted  honestly  and  in  the  utmost  good  faith. 

§  150.  Keclainiing  the  property. —  This  principle  may 

be  carried  further,  and  it  may  be  laid  down  as  a  rule  well  set- 
tled that  the  bailee,  acting  honestly  and  in  good  faith,  may  and 
should  use  reasonable  diligence  in  reclaiming  the  property  that 
has  been  injured  or  temporarily  lost  by  reason  of  inevitable 
accident  or  irresistible  force,  and  to  the  extent  that  reasonable 
diligence  requires  it  in  the  care  and  protection  of  the  thing, 
the  bailor  will  be  compelled  to  compensate  the  bailee  for  thus 
reclaiming  the  property.  As,  for  example,  if  the  property  has 
been  swept  away  by  flood,  the  bailee,  when  he  finds  it,  should 
return  it  to  his  control  and  possession,  and  if  such  an  act  would 
be  adjudged  the  conduct  of  a  reasonably  prudent  man,  the 
bailee  may  recover  reasonable  compensation  for  the  extra  labor 
thus  bestowed  upon  the  thing. 

§  151.  Generally  bailee  may  do  tlie  work  by  an  agent  or 
servant. —  As  a  general  rule  the  bailee  may  perform  the  labor 
by  other  persons  employed  for  the  purpose;  except  in  cases 
where  the  very  nature  of  the  employment  requires  the  per- 
sonal labor  and  attention  of  the  workman  employed;  as  in  case 
of  employing  a  portrait  painter  to  paint  a  picture,  or  a  pro- 
fessional man  to  do  some  work  calling  for  his  personal  skill  in 
the  performance.  But  in  cases  where  the  work  may  be  dele- 
gated to  others,  the  bailee  may  employ  agents  or  servants  to 
perform  the  labor  or  assist  him  in  the  undertaking.  The  bailee 
is  liable  for  the  acts  of  his  servants  or  agents  while  engaged  in 
carrying  on  the  work,  or  engaged  within  the  scope  of  the  em- 
ployment, but  they  cannot  be  held  to  be  in  any  respect  the 
servants  or  agents  of  the  bailor.  Nor  are  the  servants  of  the 
bailee  the  servants  of  the  bailor,  nor  in  any  sense  acting  for 
him;  and  so  it  follows  that  the  liability  of  the  bailor  and  bailee 
to  third  parties  is  entirely  independent  of  the  other.  In  the 
case  of  New  York,  L,  E.  cfc  W.  Ry.  Co.  v.  New  Jersey  Electric 

95 


§  152.]  ORDINARY    BAILMENTS.  [PART    I^ 

By.  Co.,  this  question  was  fully  discussed.  There  the  question 
of  contributory  negligence  of  the  bailee  was  claimed  to  be  a 
defense  in  an  action  brought  by  the  bailor,  and  in  the  discus- 
sion of  this  question  the  court  fully  defines  the  rights  and 
liabilities  of  the  parties  in  respect  to  like  cases  ;^  the  court 
holding  that  in  an  action  by  the  bailor  or  owner  of  the  prop- 
erty for  its  damage  or  destruction,  the  defendant,  third  party, 
cannot  defend  upon  the  ground  that  the  bailee,  who  at  the 
time  had  the  property  in  his  possession  and  control,  was  guilty 
of  contributory  negligence;  that  in  no  way  could  the  use  of  the 
property  by  the  bailee  affect  the  right  of  action  of  the  bailor. 
§  152.  Where  skill  as  well  as  care  is  required. —  We  are 
here  to  deal  with  the  higher  class  of  the  locatio  bailments.  We 
have  before  mentioned,  and  in  a  general  way  discussed,  the  sub- 
ject, but  not  as  fully  as  is  required.  The  subject  embraces  that 
class  of  labor  and  care  upon  the  subject  of  the  bailment  that  is 
usually  denominated  skilled  labor  and  care,  which,  though  but 
ordinary  in  its  class,  is  nevertheless  very  much  more  than  the 
ordinary  care  required  in  the  ordinary  and  usual  bailment  re- 
lation. It  may  be  well  understood  that  the  workman  who  is 
to  receive  material  for  the  construction  of  a  iine  and  difficult 
piece  of  mechanism,  as,  for  example,  an  expensive  piece  of 
jewelry  to  be  set  with  costly  gems;  or  the  construction  of  an 
expensive  watch,  or  a  carefully-constructed  mathematical  in- 
strument, must  of  necessity  possess  greater  skill  and  be  re- 
quired to  exercise  a  higher  degree  of  care  than  the  blacksmith 
who  is  to  construct  a  horseshoe  from  iron  at  his  forge,  or  the 
carpenter  who  is  to  build  a  board  fence  for  the  farm,  or  a  cat- 
tle-barn, and  yet  the  rule  of  law  in  each  case  would  be  the 

1  N.  Y.,  L.  E.  &  W.  Ry.  Co.  v.  N.  J.  in  an  action  by  the  bailee  for  in- 

Electrio  Ry.  Co.,  38  Atl.  828.     Held,  juries  against  a  third   party,  occa- 

the  servants  of  the  bailee  in  a  bail-  sioned   by  his  negligence,  the  con- 

ment  for  hire  are  not  the  servants  of  tributory  negligence  of  the  bailee  or 

the  bailor,  and  he  is  not  responsible  his  servants  or  agents  will  constitute 

to  a  third  party  for  the  negligence  a  defense  to  the  action,  yet  in  an  ac- 

of  the  servants  of  the  bailee  in  re-  tion  by  the  bailor,  who  is  the  owner, 

spect  to  the  bailment.    The  bailee  against  a  third  party,  for  injury  to- 

does  not  stand  in  the  place  of  the  the  bailment,  the  negligence  of  the 

bailor,  nor  represent  him  in  such  re-  bailee  or  his  servants  or  agents  is  not- 

lation  as  to  render  the  bailor  liable  imputable  to  such  bailor,  and  will 

for  the  negligent  acts  of  the  bailee  not  prevent  a  recovery." 
or  his  servants  or  agents;  and  while, 

96 


CH.  X.]  LOCATIO    OPERIS    BAILMENTS.  [§  153. 

same.  First  of  all,  it  may  be  said  that  when  skill  as  well 
as  care  is  required  by  the  workman,  the  law  requires  of  him 
that  — 

§  153.  He  must  exercise  the  skill  adequate  to  the  proper 
performance  of  the  work. —  The  very  work  itself  carries  with 
it  notice  to  the  workman  that  it  requires  more  than  ordinary 
labor;  that  whoever  undertakes  to  perform  the  labor  must 
possess  the  skill,  and  a  degree  of  skill  peculiar  to  the  par- 
ticular requirements  of  the  particular  piece  of  work.  If  the 
bailor  brings  fine  gold  and  costly  gems  from  which  he  desires 
constructed  a  beautiful  necklace,  this  of  itself  notifies  the  work- 
man that  it  requires  a  skilled  workman  to  do  this  work.  The 
law  does  not  put  this  upon  the  ground  of  a  warranty  either 
express  or  implied,  it  is  a  common-law  liability  which  requires 
the  bailee,  the  workman,  to  perform  the  work  with  that  skill 
and  ability  which  the  particular  work  requires;  he  is  bound  to 
use  such  reasonable  skill  as  the  undertaking  demands.^  In 
Lincoln'^.  Gay{  cloth  was  delivered  to  a  dressmaker  to  be  made 
into  a  dress  without  any  instructions;  the  dressmaker  made  up 
the  cloth  wrong  side  out.  The  Massachusetts  court  held  that 
an  action  could  be  maintained  against  her.  The  court  say: 
"  If  the  dress  was  delivered  to  the  defendant  by  the  plaintiff 
without  any  instructions,  the  defendant  being  a  bailee  for  hire 
was  held  to  that  degree  of  skill  and  care  in  the  particular  occu- 
pation in  which  she  was  engaged,  which  was  that  of  a  dress- 
maker, which  would  enable  her  to  do  the  work  intrusted  to 
her  in  a  reasonable  and  proper  manner."  ^ 

"  The  relation  of  the  bailor  to  the  bailee  is  a  personal  one, 
and  grows  out  of  the  confidence  the  bailor  is  presumed  to  re- 
pose in  the  skill  and  fidelity  of  his  bailee  when  intrusting  his 
property  to  him  for  the  service  intended  to  be  performed  upon 
or  toward  it.  The  law  implies  a  contract  upon  the  part  of  the 
bailee  to  perform  the  service  skilfully,  and  then  to  return  the 
chattel  faithfully  on  payment  for  his  service."^  "Every  me- 
chanic who  takes  any  material  to  work  up  for  another  in  the 
course  of  his  trade,  as  when  a  tailor  receives  cloth  to  be  made 

iKuehn  v.  Wilson,  13  W13.  116.  3  Jackson  v.  Adams,  9  Mass.  484; 

2 164  Mass.  537.  Story,  Bailments,  sec.  431. 

4  Rogers  v.  Grothe,  58  Pa.  St.  414. 
7  97 


§§  154-151).]  ORDINAKY    BAILMENTS.  [PART    I. 

up  into  a  coat,  or  a  jeweler  a  gem  to  be  set  or  engraved,  is 
bound  to  perform  it  in  a  workmanlike  manner."^ 

^  154.  If  the  bailee  for  hire  purports  to  have  skill  he 
must  use  it. —  The  question  is  not,  has  the  bailee  the  skill  re- 
quired to  do  the  work  in  the  given  case — the  very  fact  that  he 
holds  himself  out  as  one  who  can  do  the  kind  of  work  required 
is  enough.  If  he  solicits  the  like  kind  of  work  by  personal  so- 
licitation or  by  advertising,  he  is  bound  to  exercise  the  skill 
required,  and  the  law  imposes  upon  him  ordinary  care  in  using 
the  skill  he  claims  to  have.  If  the  bailee  actually  possesses 
the  skill  required,  the  law  presumes  that  he  is  employed  be- 
cause of  that  fact,  and  that  the  bailor  has,  by  reason  of  the 
employment,  secured  not  only  the  performance  by  him  of  the 
labor  necessary  to  carry  out  the  obligation,  but  that  he  has 
also  employed  and  is  entitled  to  his  skill  and  judgment  in  doing 
the  work  required.  The  maxim  of  the  law  in  such  like  cases 
is  "  Spondet  peritiam  artis:  "  he  promises  to  use  the  skill  of 
his  art;  and  to  do  anything  less  than  that  would  be  a  want 
of  that  ordinary  care  and  diligence  which  the  law  requires  the 
bailee  to  exercise;  it  would  be  such  negligence  as  would  sup- 
port an  action  on  the  part  of  the  bailor. 

§  155.  Ordinary  skill  required. —  This,  it  will  be  re- 
membered, is  a  mutual-benefit  bailment,  and  so  the  rule  obtains 
that  in  the  performance  of  the  particular  work  the  bailee  is 
only  held  to  exercise  ordinary  skill;  but  ordinary  skill  in  this 
class  of  labor  is  upon  a  higher  plane  than  in  cases  where  the 
labor  required  is  unskilled  labor.  It  is  such  skill  as  the  ordi- 
narily skilful  workman  in  such  kind  of  work  would  exercise 
upon  his  own  material  in  doing  the  same  kind  of  work  under 
just  such  circumstances;  he  must  exercise  the  skill  he  has;  the 
skill  the  undertaking  requires,  and  nothing  less.  AYe  mean 
by  this  that  it  is  at  all  times  ordinary  skill,  as  we  have  stated, 
and  not  extraordinary. 

§  156.  The  degree  of  skill  and  diligence  increases  in  cer- 
tain cases. —  From  what  has  been  said  it  may  be  inferred,  and 
it  is  the  law,  that  the  degree  of  skill  and  diligence  increases  in 
proportion  to  the  value,  difficulty  of  performance,  and  delicacy 
of  the  particular  work  to  be  done  or  undertaking  to  be  accom- 
plished; as,  for  example,  if  one  is  employed  to  make  iron  into 

12  Kent's  Com.  588;  Keith  v.  Bliss,  10  111.  App.  424. 
98 


CH.  X.]  LOCATIO    OPERIS    BAILMENTS.  [§§  157,  158. 

stove  castings,  the  requirements  would  not  be  so  difficult  and 
particular  as  an  employment  to  construct  some  sensitive  math- 
ematical machine;  a  slight  mistake  in  the  former  case  might 
be  overlooked,  but  a  very  slight  mistake  in  the  latter  would 
render  the  entire  machine  and  all  the  material  and  labor  value- 
less. 

§  157.  Skilled  work  by  an  agent  or  servant, —  To  just  what 
extent  the  bailee  for  hire  can  perform  the  obligation,  or  do  the 
work  by  agents  or  servants,  it  would  be  difficult  to  say  except 
in  a  particular  case.  But  by  way  of  a  general  rule  it  might  be 
said  that  the  employment  is  generally  on  account  of  the  per- 
sonal skill  of  the  bailee,  and  whenever  that  is  true  he  cannot 
delegate  the  work  to  another.  "  Spondet  jperitiam  artis,^''  we 
must  remember,  is  the  maxim;  it  is  the  art  of  the  bailee  him- 
self that  has  been  employed  and  not  the  art  of  another. 

If  one  who  is  a  portrait  painter  has  been  employed  to  make 
a  fine  portrait,  the  artist  could  hardly  be  justified  in  employing 
another  to  do  his  work;  or  if  one,  because  of  his  particular 
ability  at  decorations,  were  employed  to  decorate  ray  house,  I 
would  be  entitled  to  his  own  personal  efforts,  and  would  not 
be  bound  to  receive  the  work  of  another.  On  the  other  hand, 
if  the  employment  were  such  that  others  could  assist  and  not 
infringe  upon  that  personal  engagement,  when  the  labor  given 
to  the  agent  or  servant  is  but  common  and  ordinary,  such  work 
as  the  ordinary  workman  or  person  employed  could  do,  in  such 
cases  it  could  be  delegated. 

§  158.  Defenses  of  the  bailee. — Some  of  the  defenses  of  the 
bailee  in  this  class  of  bailments  have  been  adverted  to.  It  is 
ordinary  skill  that  is  demanded  and  not  extraordinary. 

(1)  So,  if  the  haAlee  can  show  that  the  skill  and  care  exercised 
in  the  particular  case  was  ordinary,  such  skill  as  we  have  already 
defined  as  ordinary,  and  that  the  skill  claimed  by  the  bailor  in 
the  particular  case  would  be  more  than  ordinary  —  would  be 
extraordinary, —  this  would  be  a  good  defense.     Or, 

(2)  If  bailor  dictated  how  the  work  should  he  done,  in  other 
words,  if  it  was  not  the  skill  of  the  bailee  which  he  desired 
to  be  exercised,  but  the  bailor  or  employer  persisted  in  using 
his  own  judgment  as  to  the  manner  of  doing  the  work,  the 
bailee  not  being  permitted  to  perform  the  service  as  he  would 
have  performed  it  because  of  the  demands  of  the  bailor  that 

99 


§  158.]  OKDINARY   BAILMENTS.  [PAET    I. 

it  should  be  done  otherwise,  and  the  work  was  done  in  all 
respects  in  accordance  with  the  orders  and  judgment  of  the 
bailor  rather  than  according  to  the  judgment  and  desire  of 
the  bailee,  in  such  case  the  bailor  could  not  sustain  an  action 
against  the  bailee  for  failure  to  perform  the  work  skilfully,  or 
in  accordance  with  the  skill  and  judgment  required  in  the  par- 
ticular case.     Or, 

(3)  If  on  account  of  defects  in  property  07' material  furnished 
by  the  bailor  the  result  was  not  satisfactory,  the  bailee  would 
not  be  liable,  for  it  is  the  duty  of  the  bailor  to  furnish  mate- 
rial fit  for  the  work,  and  the  thing  upon  which  the  work  must 
be  performed  must  be  such  that  the  result  could  be  attained 
that  is  desired;  and  if  otherwise,  if  the  material  is  not  fit,  and 
especially  if  the  bailee,  before  commencing  the  work  or  before 
using  the  material,  had  notified  the  bailor  of  his  inability  to 
accomplish  the  desired  result  on  account  of  the  unfitness  of 
the  thing  or  the  material,  and  after  such  notice  the  bailor  in- 
sisted upon  going  on  with  the  work,  in  such  case  the  bailor  could 
not  sustain  his  action.  As,  for  example,  the  jeweler  is  called 
upon  to  set  fine  gems,  and  the  gems  furnished  are  broken  or 
defective;  or  the  miller  to  produce  first-class  flour  from  wheat, 
and  the  wheat  furnished  is  of  poor  quality;  or  the  cabinet- 
maker to  build  fine  furniture,  and  the  lumber  furnished  is 
unfit.     Or, 

(4)  7/^  hailor  refuses  to  furnish  necessary  finds  to  purchase 
needed  articles,  and  insists  that  the  amount  furnished  shall  be 
expended,  and  the  best  it  will  purchase  be  used,  and  the  bailee 
purchases,  and  exercises  ordinary  judgment  and  skill  in  mak- 
ing the  purchases,  the  bailor  will  not  be  heard  to  say  that  the 
article  is  deficient  because  the  article  so  purchased  was  not 
suitable  for  the  purpose,  and  that  therefore  the  product  of  the 
workman  is  defective.     Or, 

(5)  If  the  hailor  knows  that  the  tailee  has  not  the  sMll  re- 
quired^ and  still  with  such  knowledge  employs  him  to  do  the 
work,  and  the  thing  is  defective  and  not  skilfully  wrought,  in 
such  case  the  bailor  could  not  recover  in  an  action  for  damages 
on  the  ground  of  want  of  ordinary  skill  in  the  bailee.  The  law 
will  not  allow  the  bailor  to  use  his  rights  or  privileges  as  a 
weapon  to  infiict  injury;  it  can  only  be  used  as  a  protection 
from  wrong-doing  and  to  remedy  an  injury  resulting  without 

100 


CH.  X.]  LOCATIO    0PEKI8    BAILMENTS.  [§§  159,  160. 

fault  on  his  part.  To  allow  recovery  in  such  a  case  would  be 
to  put  a  premium  upon  bad  faith  or  carelessness,  whereas  the 
utmost  good  faith  and  reasonable  care  is  required  as  well  on 
the  part  of  the  bailor  as  on  the  part  of  the  bailee. 

§  159.  Notice  to  the  bailor  that  claims  for  defects  must 
be  made  within  a  certain  time. —  Upon  a  bailment  of  goods 
locatio  operisfaciendi,  to  do  work  upon  them  for  a  reward,  the 
contract  implied  by  law,  that  the  work  shall  be  done  with  due 
care  and  competent  skill,  arises  immediately  upon  the  delivery 
of  the  goods  to  the  bailee;  and  upon  the  completion  of  the 
work  for  which  the  bailment  was  made,  it  is  the  duty  of  the 
bailee  to  return  the  goods  to  the  owner,  and  no  notice  impos- 
ing conditions  upon  the  implied  contract  given  to  the  bailor 
after  the  work  is  completed  would  be  binding.  This  principle 
was  well  illustrated  in  the  case  of  Dale  v.  See^  by  the  supreme 
court  of  New  Jersey.  A  manufacturer  sent  silk  braids  to  a 
dyer  to  be  dyed,  relying  upon  the  implied  contract  of  dyers  to 
use  the  proper  degree  of  skill.  The  twist,  after  being  dyed  by 
the  defendants,  was  returned  to  plaintiffs,  who  wove  a  part  of 
it  into  silk  braids.  Subsequent!}^,  and  in  a  short  time,  these 
braids  were  found  to  be  of  greatly  inferior  value  on  account 
of  their  being  oily,  which  oily  condition  was  due  to  unskilful 
dying.  The  defendants,  on  returning  the  dyed  silk  to  the 
plaintiffs,  sent  their  bill  for  the  same,  upon  which  was  printed 
the  following  notice:  "All  claims  for  deficiencies  or  damages 
must  be  made  within  three  days  from  date,  otherwise  not  al- 
lowed." JSTo  notice  was  given  the  defendants  by  the  plaintiffs 
until  several  months  after  they  received  this  notice.  The 
court  held  that  this  was  no  defense  in  case  of  bailments  "  lo- 
catio ojperis  faciendi^''  that  the  contract  between  the  parties 
arose  immediately  upon  the  delivery  of  the  materials  to  the 
bailee,  and  the  bailee  could  not  prescribe  conditions  under 
which  he  would  perform  the  duty  after  the  work  has  been  per- 
formed. 

§  160.  Title  to  the  material  used  by  bailee  passes  to  bailor 
by  accession. —  This  principle  has  already  been  partially  dis- 
cussed. It  should  be  remembered  that  the  thing  delivered 
to  the  bailee,  upon  which  the  service  is  to  be  performed,  is  a 
bailment,  the  title  to  which  is  at  all  times  in  the  bailor;  and  so 

1  5  Lawy.  Rep.  Ann.  583,  —  N.  J.  L. .     See  cases  cited. 

101 


§  161.]  ORDINARY    BAILMENTS.  [PART    I. 

any  material  used  upon  it,  though  furnished  by  the  bailee,  be- 
comes a  part  of  the  thing  and  is  absorbed  by  it,  no  matter  if 
the  materials  are  of  greater  value  than  the  thing.  This  rule  is 
important  in  cases  where  the  thing  is  destroyed  b}^  unavoid- 
able accident  or  irresistible  force  before  its  completion ;  for  in 
such  case,  because  of  the  rule  of  law  of  accession,  the  bailor  is 
held  liable  to  pay  not  only  for  the  labor,  but  for  the  material ; 
it  is  all  the  property  of  the  bailor  when  it  perishes,  and  none 
of  it  the  property  of  the  bailee.^ 

§  161.  The  lien  of  the  bailee  in  '^  locatlo  operis  faciendi" 
bailments. —  We  have  already  discussed,  in  a  general  way,  the 
subject  of  the  lien  of  the  bailee  in  certain  cases,^  but  as  applied 
to  the  subject  here  under  consideration  it  seems  to  assume 
much  greater  importance.  "We  know  that  the  bailee  who  per- 
forms labor  upon  and  adds  material  to  the  thing  by  way  of 
repairs,  as  a  general  rule  has  a  lien  upon  the  repaired  or  newly- 
made  chattel  for  his  labor  and  materials,  and  that  so  long  as 
he  keeps  the  thing  in  his  possession,  asserting  his  lien  and  doing 
no  act  inconsistent  with  the  lien,  it  will  be  good  as  against  all 
the  world. 

This  right  of  lien  has  been  very  much  enlarged  in  later  years- 
Originally  at  common  law  the  right  of  lien  was  confined  to 
cases  where  persons,  by  reason  of  their  occupation,  were  under 
obligation  to  receive  and  care  for  and  do  labor  on  the  per- 
sonal property  of  others;  such  as  common  carriers,  innkeep- 
ers, farmers,  and  the  like.  In  more  modern  times  the  right 
has  been  materially  extended,  and  now  it  may  be  laid  down 
as  a  general  rule  to  which  there  are  but  few  exceptions, 
"  that  every  bailee  for  hire,  who  by  his  labor  and  skill  has  im- 
parted an  additional  benefit  to  the  goods  of  another,  has  a  lien 
upon  the  property  for  his  reasonable  charges  in  relation  to  it, 
and  a  right  to  retain  it  in  his  possession  until  these  charges  are 
paid.  This  includes  all  such  mechanics,  tradesmen  and  labor- 
ers as  receive  property  for  the  purpose  of  repairing,  cleansing, 
or  otherwise  improving  its  condition." 

In  Wilson  v.  Martin'^  the  supreme  court  of  New  Hampshire 
illustrates  this  doctrine  of  lien:  One  had  a  lien  upon  some  har- 

1  Gregory  v.  Stryker,  2  Denio,  628;  3  40  N.  H.  88,  the  case  of  an  hostler; 
Story,  Bailments,  423.  Yelv.  67;  Case  v.  Waterhouse,  6  East, 

^  Ante,  §  65.  523;  2  Kent's  Com.  (5th  ed.)  65a 

102 


CII.  X.]  LOCATIO    OPERIS    BAILMENTS.  [§  162. 

ness  of  the  plaintiff  for  oiling  and  cleaning  and  labor  bestowed, 
and  plaintiff  brought  suit  to  recover  them.  The  court  held 
that  he  had  a  right  to  retain  the  possession  and  control  of  the 
harness  until  his  charges  in  that  behalf  should  be  paid. 

§  16^.  Priority  of  the  lien. —  As  to  whether  the  bailee's 
lien  obtained  because  of  services,  or,  as  is  sometimes  said,  for 
betterments  upon  the  property,  has  priority  over  other  liens 
depends  entirely  upon  the  circumstances  under  which  it  was 
created.  It  is  a  general  rule  that  the  lien  of  the  workman  as 
against  a  prior  recorded  mortgage,  or  in  some  of  the  states  a 
chattel  mortgage  on  file,  will  not  be  held  a  prior  lien  with- 
out the  consent  or  acquiescence  of  the  mortgagee  obtained 
prior  to  the  performing  of  the  labor.  There  are,  however,  cer- 
tain circumstances  that  render  a  lien  of  the  Avorkman,  obtained 
by  reason  of  labor  or  repairs  made  upon  the  property  while  in 
the  possession  of  the  mortgagor  and  at  his  request,  good  even 
against  the  mortgagee  of  the  property  whose  mortgage  is  re- 
corded or  filed  as  provided  by  law.  These  cases  seem  to  be 
confined  to  repairs  that  are  made  necessary  to  preserve  the 
property  and  make  it  useful.  That  is  the  case  where  the  prop- 
erty, if  the  repairs  were  not  made,  would  become  useless.  The 
rule  is  laid  down  and  discussed  in  the  case  of  Scott  et  at.  v. 
Delaliunt  et  al}  The  action  was  brought  to  foreclose  a  lien 
upon  a  canal-boat  against  the  owner  and  the  mortgagee  —  the 
mortgaged  defending.  It  appeared  that  the  owner,  who  was 
running  her  as  master,  had  taken  her  to  the  plaintiff's  dry  dock 
for  repairs;  that  the  boat  had  foundered  and  sunk,  and  unless 
the  labor  was  put  upon  her  would  have  been  useless;  that  the 
mortgage  of  the  defendant  was  a  long  time  prior  to  the  time 
of  making  the  repairs.  The  court  say:  "It  must  be  taken  as 
true  that  the  owner  was  running  this  boat  with  the  knowledge 
and  consent  of  the  mortgagees,  and  that  the  repairs  were  nec- 
essary to  repair  the  damage  which  the  boat  had  received,  and 
to  put  her  in  condition  for  use.  Under  such  circumstances  I 
am  of  opinion  that  plaintiff's  lien  has  priority  over  defendants' 
morto-aire.  The  mortgao-ees  having  allowed  the  owner  to  con- 
tinue  in  the  apparent  ownership  of  the  boat,  making  her  a 
source  of  profit,  and  the  means  of  earning  wherewithal  to  pay 
off  the  mortgage  debt,  the  relation  so  created  by  implication 

1 65  N.  Y.  138. 
103 


§  162.]  ORDINARY    BAILMENTS.  [PAET   I. 

entitles  the  owner  to  do  all  that  may  be  necessary  to  keep  her 
in  eiBcient  state  for  the  purpose.  The  boat  having  been  dam- 
aged and  rendered  unfit  for  use,  the  owner  did  that  which  was 
obviously  for  the  advantage  of  all  parties  interested ;  he  put 
her  into  the  hands  of  the  plaintiffs  to  be  repaired,  and  accord- 
ing to  all  ordinary  usage  they  ought  to  have  a  right  of  lien  on 
the  boat,  so  that  those  who  are  interested  in  her,  and  who  will 
be  benefited  by  the  repairs,  should  not  be  allowed  to  take  her 
discharged  of  the  lien.  Looking  to  the  rights  and  interests  of 
the  parties,  generally,  it  cannot  be  doubted  that  it  is  much  to 
the  advantage  of  the  mortgagee  in  such  case  that  the  mortgagor 
or  owner  should  be  held  to  have  power  to  confer  a  right  of 
lien  on  the  boat  for  repairs  necessary  to  keep  her  fit  for  navi- 
gation. Such  is  substantially  the  reasoning  of  Erie,  C.  J.,  in 
Williams  v.  Allsup}  I  am  unable  to  distinguish  that  case 
from  this,  and  the  reasoning  of  the  learned  judges  who  Avrote 
opinions  therein  is  quite  satisfactory.  I  can  perceive  no  dis- 
tinction between  the  two  cases,  founded  upon  the  facts  that  in 
that  case  the  vessel  was  a  steamboat,  navigating  the  ocean  or 
navigable  waters  connected  therewith,  while  in  this  case  the 
vessel  was  a  canal  boat.  In  such  case  the  shipwright  has  pos- 
session of  the  vessel  as  security  for  repairs,  made  at  the  request 
of  the  mortgagor,  or  one  standing  in  his  place  as  the  owner, 
and  the  same  principles  that  would  give  them  a  superior  lien 
in  the  one  case  would  in  the  other." 

It  w^ill  be  seen  that  the  priority  of  the  lien  in  such  cases  is 
based  upon  the  element  of  necessity,  or  the  securing  of  the 
property  and  making  it  useful  to  both  the  owner  and  the 
mortgagee ;  that  by  reason  of  the  repairs  upon  the  property 
there  has  been  a  substantial  benefit  to  the  mortgagee — a  bene- 
fit to  the  extent  of  making  it  possible  to  recover  the  amount 
of  his  mortgage.^ 

1 10  C.  B.  (N.  S.)  417.  paired.    Held,  that  the  person  mak- 

2  In  the  case  of  Hammond  v.  Dan-  ing  the  repairs  had  a  lien  therefor 

ielson,   126    Mass.  294,  a    hack,    de-  as  against  the  mortgagea     Gray,  C. 

scribed  as  in  use  at  certain  stables,  J.,  delivering   the  opinion,  said:  A 

was  mortgaged,  and,  by  the  terms  of  lien  upon  personal  property  cannot 

the  mortgage,  the  mortgagor  was  to  indeed  be  created  without  authority 

retain  possession  and  use  and  enjoy  of  the  owner.  Hollingsworth  v.  Dow, 

the  same  until  default.     While  so  in  19  Pick.  228;  Globe  Works  v.  Wright, 

possession,  the  mortgagor  had  it  re-  106  Mass.  207.     But  in  the  present 

104 


•CH.  X.] 


LOCATIO    OPERIS    BAILMENTS. 


[§  163. 


§  163,  Agisters  and  livery-stable  men,  no  lien  at  common 
law. —  It  is  because  of  this  principle  of  law  that  a  common-law 
lien  has  by  the  great  weight  of  authority  been  denied  to  agis- 
ters and  livery-stable  men.  It  is  said  that  they  are  merely 
keepers  of  the  animals  intrusted  to  them,  not  imparting  sub- 
stantial benefit  or  betterment  as  does  the  workman  who  repairs 
the  chattel.  Nor  are  they  under  lany  obligation  to  take  the  ani- 
mals into  their  care  and  keeping;  no  such  obligation  or  duty 
resting  upon  them,  as  is  imposed  in  case  of  innkeepers  and 
<;ommon  carriers. 

The  agister,  or  liveryman,  is  at  liberty  to  do  as  he  pleases 
as  to  taking  the  animals,  and  if  he  takes  them  may  impose 
such  terms  and  conditions  as  he  chooses.  He  may  demand  his 
pay  in  advance,  or  may  by  contract  create  a  lien  upon  the 
property  for  it.^ 


case  such  an  authority  must  be  im- 
plied from  the  facts  agreed.  The 
subject  of  the  mortgage  is  a  hack, 
that  is  to  say,  a  carriage  let  for  hire, 
described  in  the  mortgage  as  "  now 
in  use  "  at  certam  stables;  and  which, 
as  the  parties  have  agreed  in  the 
case  stated,  the  mortgagor  retained 
possession  of  and  used  agreeably  to 
the  terms  of  the  mortgage.  It  was 
the  manifest  intention  of  the  parties 
that  the  hacli  should  continue  to  be 
driven  for  hire,  and  should  be  kept 
in  a  pi'oper  state  of  repair  for  that 
purpose,  not  merely  for  the  benefit 
■of  the  mortgagee,  but  for  that  of  the 
mortgagor  also,  by  preserving  the 
value  of  the  security,  affording  a 
means  of  earning  wherewithal  to 
pay  off  the  mortgage  debt.  The 
case  is  analogous  to  those  in  which 
courts  of  common  law,  as  well  as  of 
admiralty,  have  held,  upon  general 
principles,  independently  of  any  pro- 
vision of  statute,  that  liens  for  re- 
pairs made  by  mechanics  upon  ves- 
sels in  their  possession  take  preced- 
ence of  prior  mortgages.  Williams 
V.  Allsup,  10  C.  B.  {N.  S.)  417;  The 
Scio,  L.  R.  1  Adm.  &  Ecci.  353,  355; 
The  Granite  State,  1  Spr.  277;  Don- 

lo; 


nell  V.  The  Starlight,  103  Mass.  227, 
233;  The  St.  Joseph,  1  Brown,  Adm. 
202. 

1  Cross  V.  Wilkins,  43  N.  H.  332. 
In  Millikin  v.  Jones,  77  111.  372,  the 
court  below  instructed  the  jury  that 
"  the  plaintiff  had  no  lien  upon  the 
cattle  for  pasturage;  that  the  law 
does  not  give  a  lien  on  the  stock  for 
pasturage  unless  there  is  a  special 
contract  that  the  stock  should  be 
especially  held  for  the  pasturage." 
The  supreme  court  held  this  to  be 
correct.  Goodrich  v,  Willard  et  al., 
7  Gray  (Mass.),  183.  The  court  say: 
"  The  sole  question  on  these  excep- 
tions is  whether  an  agister  of  cattle 
has  a  lien  on  them  for  their  keeping. 
He  has,  by  the  law  of  Scotland  (3 
Bell,  Com.  110);  but  the  common-law 
authorities  are  uniform  that  he  has 
not,  except  by  special  agreement 
with  the  owner.  No  such  agreement 
appeai-s  in  this  case,  and  the  ruling 
at  the  trial  must  therefore  be  sus- 
tained. Chapman  v.  Allan,  Cro.  Car. 
271;  Jackson  v.  Cummins.  5  M.  &  W. 
342;  Cross  on  Lien,  25,  332;  2  Saund. 
PI.  &  Ev.  (2d  ed.)  299;  1  Dane,  Abr. 
232;  2  Kent,  Com.  (6th  ed.)  634,  note; 
Grinnell  v.    Cook,  3  Hill,  491,  492; 


163.] 


OKDINARY    BAILMENTS. 


[part  I, 


In  an  early  case  in  Yermont,  Cummings  v.  JIarris,  the  court 
gives  its  views  for  the  reason  of  the  rule  and  says :  "  The  usual 
cases  in  which  the  law  creates  a  lien  are,  where  the  person 
performing  services  would  have  no  other  sure  remedy :  as  a 
blacksmith  shoeing  a  horse  for  a  stranger;  or  a  watchmaker 
cleaning  a  watch  for  a  stranger;  or  an  innkeeper  furnishing 
entertainment  for  travelers;  and,  where  the  persons  applying 
for  these  services  are  not  strangers,  the  usage  of  their  deal 
may  be  such  that  the  law  will  create  a  lien.  For  instance,  the 
course  of  their  deal  may  be  that  payment  for  their  services  is- 
always  made  before  their  property  is  taken  away.  But  where 
the  business  is  done  under  a  personal  contract  the  law  implies 
no  lien;  but  the  parties  may  so  form  their  contract  as  to  create 
a  lien,  which  the  law  will  enforce."^  And  in  Grinnellv.  Cook^ 
Bronson,  J.,  said  in  the  opinion :  "  The  right  of  lien  has  always 
been  admitted  where  the  party  was  bound  by  law  to  receive 

Miller  v.  Marston,  35  Me.  153.    We    agreement,  will  not  give  to  a  farmer 


notice  in  the  editions  of  Story  on 
Bailments  which  have  been  pub- 
lished since  the  author's  decease, 
that  this  settled  rule  of  law  is  put 
(we  know  not  why)  under  a  "  query," 
in  a  note  to  section  443.  It  is  not  so 
in  the  editions  published  during  his 
life.  Lewis  v.  Tyler,  33  Cal.  364.  In 
this  case  the  court  discusses  the 
question  of  the  reason  for  giving  to 
the  agister  no  common-law  lien.  The 
court  say:  "  The  general  principle  is, 
that  where  the  law  compels  a  person, 
such  as  an  innkeeper  or  common 
carrier,  to  take  the  care  and  custody 
of  goods,  he  shall  have  a  lien  upon 
the  goods  for  his  reasonable  and  just 
charges  therefor;  and  the  same  rule 
applies  to  a  person  who,  by  his  labor 
and  skill,  has  imparted  an  additional 
value  to  the  goods.  Grinnell  v.  Cook, 
3  Hill,  491.  But  one  who  merely  pro- 
vides food  and  takes  the  care  of  an 
animal,  as  an  agister  or  livery-stable 
keeper,  has  no  lien  on  the  property, 
unless  there  be  a  special  agreement 
to  that  effect."  Bissell  v.  Pierce,  28 
N.  Y.  252.  The  court  held  that  "  The 
law,  in  the  absence  or  any  special 


who  pastures  horses  for  hire,  a  lien 
upon  the  horses  for  the  price  of  keei> 
ing  them.  The  certificate  of  the 
town  clerk  in  whose  office  a  chattel 
mortgage  is  filed,  stating  that  a  paper 
is  a  copy  of  the  original  mortgage,  is 
no  proof  of  the  existence  of  the  mort- 
gage. That  must  be  produced  and 
proved,  or  its  non-production  ac- 
counted for,  so  as  to  authorize  sec- 
ondary evidence.  Nor  is  the  certifi- 
cate of  the  town  clerk  any  evidence 
that  the  paper  purporting  to  be  a 
copy  of  the  mortgage  is  a  copy.  The 
mortgage,  and  its  contents,  must  be 
proved  by  common-law  evidence."' 
McCoy  V.  Hock.  37  Iowa,  436,  held 
that  under  a  contract  for  wintering 
cattle,  stipulating  that  the  expressed 
amount  thereof  shall  be  paid  before 
moving  the  cattle  from  the  agister's-  j 
farm,  he  is  entitled  to  retain  them 
until  paid  the  agreed  amount.  Jones  i 
on  Liens,  sec.  641 ;  Cross  v.  Wilkins, 
43  N.  H.  332;  Wright  v.  Sherman,  Sj 
S.  Dak.  290;  McGliee  v.  Edwards,  87 
Tenn.  506. 
1  Cummings  v.  Harris,  3  Vt.  244. 


108 


CH.  X.]  LOCATIO    OPERIS    BAILMENTS.  [§  163. 

the  goods;  and  in  modern  times  the  right  has  been  extended  so 
far  that  it  may  now  be  laid  down  as  a  general  rule,  that  every 
bailee  for  hire  who  by  his  labor  and  skill  has  imparted  an  ad- 
ditional value  to  the  goods  has  a  lien  upon  the  property  for 
his  reasonable  charges.  This  includes  all  such  mechanics, 
tradesmen  and  laborers  as  receive  property  for  the  purpose  of 
repairing,  or  otherwise  improving  its  condition.  But  the  rule 
does  not  extend  to  a  livery-stable  keeper,  for  the  reason  that 
he  only  keeps  the  horse,  Avithout  imparting  any  new  value  to 
the  animal.  And  besides,  he  does  not  come  within  the  policy 
of  the  law,  which  gives  the  lien  for  the  benefit  of  trade.  Upon 
the  same  reasons  the  agister  or  farmer  who  pastures  the  horses 
or  cattle  of  another  has  no  lien  for  their  keeping,  unless  there 
be  a  special  agreement  to  that  effect."^ 

The  supreme  court  of  Pennsylvania  has  not  indorsed  this 
doctrine,  but  in  the  face  of  the  great  weight  of  authority  has 
held  that  the  agister  has  a  common-law  lien  upon  the  animals 
for  their  keep.  They  have  followed  the  reasoning  of  Chief 
Justice  Gibson  in  Steinman  v.  WilMns,-  an  early  case,  and  one 
who  reads  it  cannot  help  but  recognize  that  it  is  well  reasoned 
if  it  has  not  been  generally  followed.  He  says:  "From  the 
case  of  a  chattel  bailed  to  acquire  additional  value  by  the  labor 
or  skill  of  an  artisan,  the  doctrine  of  specific  lien  has  been 
extended  to  almost  every  case  in  which  the  thing  has  been  im- 
proved by  the  agency  of  the  bailee.  Yet,  in  the  recent  case  of 
Jackson  v.  Cummings  (5  Mees.  &  Welsh.  342),  it  was  held  to 
extend  no  further  than  to  a  case  in  which  the  bailee  has  di- 
rectly conferred  additional  value  by  labor  or  skill,  or  indi- 
rectly by  the  instrumentality  of  an  agent  under  his  control;  in 
supposed  accordance  with  which  it  was  ruled  that  the  agist- 
ment of  cattle  o-ives  no  lien.  But  it  is  difficult  to  find  an  aro^u- 
ment  for  the  position  that  a  man  who  fits  an  ox  for  the 
shambles,  by  fatting  it  with  his  provender,  does  not  increase 
its  intrinsic  value  by  means  exclusively  within  his  control. 
There  are  certainly  cases  of  a  different  stamp,  particularly 
Bevan  v.  Water's  (Mood.  &  Malk.  235),  in  which  a  trainer  was 
allowed  to  retain  for  fitting  a  race-horse  for  the  turf.    In  Jach- 

iGrinnell  v.  Cook,  3  Hill  (N.  Y.),        2  7  Watts  &  Serg.  466. 
485,  38  Am.  Dec.  206. 

107 


§  163.]  ORDINARY    BAILMENTS.  [pART    I. 

son  V.  Cummings  we  see  the  expiring  embers  of  the  primitive 
notion  that  the  basis  of  the  lien  is  intrinsic  improvement  of 
the  thing  by  mechanical  means;  but  if  we  get  away  from  it  all, 
what  matters  it  how  the  additional  value  has  been  imparted, 
or  whether  it  has  been  attended  with  an  alteration  in  the  con- 
dition of  the  thing  ?  It  may  be  said  that  the  condition  of  a 
fat  ox  is  not  a  permanent  one;  but  neither  is  the  increased 
value  of  a  mare  in  foal  permanent;  yet  in  Searfe  v.  Morgan 
(4  Mees.  &  "Welsh.  270),  the  owner  of  a  stallion  was  allowed  to 
have  a  lien  for  the  price  of  the  leap.  The  truth  is,  the  modern 
decisions  evince  a  struggle  of  the  judicial  mind  to  escape  from 
the  narrow  confines  of  the  earlier  precedents,  but  without  hav- 
ing as  yet  established  principles  adapted  to  the  current  trans- 
actions and  convenience  of  the  world.  Before  Chase  v.  West- 
more  (5  Maule  &  Selw.  180),  there  was  no  lien  even  for  work 
done  under  a  special  agreement;  now,  it  is  indifferent  whether 
the  price  has  been  fixed  or  not.  In  that  case.  Lord  Ellenbor- 
ough,  alluding  to  the  old  decisions,  said  that  if  they  'are  not 
supported  by  law  and  reason,  the  convenience  of  mankind  cer- 
tainly requires  that  our  decisions  should  not  be  governed  by 
them;'  and  Chief  Justice  Best  declared  in  Jacobs  v.  Zatour 
(5  Bingh.  132),  that  the  doctrine  of  lien  is  so  just  between 
■debtor  "and  creditor  that  it  cannot  be  too  much  favored.  In 
Kirhham  v.  Shaiva^oss  (6  T.  R  17),  Lord  Kenyon  said  it  had 
been  the  wish  of  the  courts,  in  all  cases  and  at  all  times,  to 
carry  the  lien  of  the  common  law  as  far  as  possible;  and  that 
Lord  Mansfield  also  thought  that  justice  required  it,  though 
he  submitted  when  rigid  rules  of  law  were  against  it." 

This  court  has  followed  this  doctrine  through  all  the  years 
to  the  present.     In  the  case  of  Yearsley  v.  Gray^  decided  in 

1 140  Pa.  St.  238.     In  the  last  case  horses  or  other  animals,  the  agister 

cited  the  court  says:  "It  is  a  well-  has  a  lien  on  them  all,  not  only  for 

settled  rule  of  law  that  an  agister  is  their  proportionate  part  of  the  sum 

not  bound  to  restore  a  horse  which  due  for  the  keep  of  all,  but  for  the 

he  has  taken  to  pasture  until  his  com-  entire  amount  due  upon  all  the  ani- 

pensation  is  paid  or  tendered.   Megee  mals    embraced    in    the    contract. 

V.  Beirne,  39Pa.  St.  50;  Mathiasv.  Sel-  Young  v.  Kimball.  23   Pa.  St.  193; 

lers,  86  Pa.  St.  486.     This  is  because  Hensel  v.  Noble,  95  Pa.  St.  345.    In 

theagister  has  a  common-law  lien  for  that  case  the  defendant  had  taken 

its  keep.     And  it  is  equally  well  set-  a  number   of  plaintiffs'  horses  and 

tied  that,  where  there  is  an  entire  cows  to   pasture,    for  a  compensa- 

contract  for  the  keepof  a  number  of  tion  agreed  upon.     The  plaintiffs  at- 


108 


I 


OH.  X.]  LOCATIO    OPEEIS    BAILMENTS.  [§§  104,  165, 

February,  1891,  many  interesting  cases  will  be  found  cited  in 
the  opinion  and  in  the  brief  of  counsel  for  the  appellee. 

§  164.  Lieu  by  statute.—  In  most  of  the  states  this  whole- 
question  is  regulated  by  statutes  which  give  to  the  agister, 
the  liveryman,  the  farmer,  the  ranchman,  and  those  who  keep 
and  care  for  cattle,  sheep,  horses  and  other  animals,  a  lien  upon 
the  animals  so  kept  and  cared  for,  for  their  keep. 

§  165.  Chattel  mortgage  takes  precedeuee  over  lien, —  The 
question  as  to  whether  a  chattel  mortgage  which  i^duly  filed 
or  recorded  as  required  by  the  statute  shall  take  precedence 
over  the  lien  of  an  agister  created  by  statute  has  been  before 
the  courts  in  several  cases.  This  presents  a  very  different 
case  from  the  one  discussed  in  the  preceding  chapter.  There 
the  question  was  one  of  benefit  and  betterment  to  the  sub- 
ject of  the  bailment,  and  often  one  of  necessity;  here  that 
question  is  not  involv^ed,  and  so  the  weight  of  authority  is  that 
a  chattel  mortgage  which  has  been  properly  executed,  filed  or 
recorded  as  the  law  requires  will  take  precedence  over  the 
lien  of  the  agister.  It  is  based  upon  the  principle  that  the 
mortgage,  having  been  executed  and  properly  filed,  becomes  a 
public  record,  and  the  law  presumes  that  every  one  has  notice 
of  its  existence  and  of  the  lien  it  creates;  that  therefore  the 
agister  had  notice  of  the  existence  of  this  lien  before  he  de- 
voted the  care  and  furnished  the  supply  of  feed  to  the  ani- 
mals bailed  to  him. 

In  a  South  Dakota  case'  the  mortgage  was  duly  executed 
and  filed  in  the  office  of  the  register  of  deeds  of  the  proper 
county  as  required  by  the  statute.  Subsequent  to  that  time  the 
mortgagor,  being  in  possession  of  the  stock,  left  them  with  the 
defendant  to  be  fed  and  taken  care  of.     The  defendant  kept 

tempted  to  take  away  one  of  the  latter,  the  defendant  had  more  se- 

liorses  without  paying  or  offering  to  curity  than  was  necessary,  the  obvi- 

pay  for  its  keep.     The  defendant  de-  ous  remedy  was  to  pay  for  their  cat- 

nied  their  right  to  do  so,  and  the  tie  and  take  them  away.     We  know 

plaintiffs  brought  replevin   for  the  of  no  case  in  which  a  debtor  can  re- 

lioi'se.    Their  contention    was    that  quire  his  creditor  to  give  up  a  por- 

the  animals  that  wei'e  left  were  more  tion  of  his  security  without  payment 

than  adequate  to  secure  the  unpaid  of  the  debt." 

bill.   This  may  be  so,  but  the  defend-  •  Wright  v.  Sherman,  17  L.  R.  A. 

ant  had  a  right  to  all  the  security  in  793;  Johnson  v.  Hill,  3  Stark,   172; 

his  hands,  and  this  right  could  not  Broadvvood  v.  Granasa,  10  Exch.  417; 

be  taken  from  liim  at  the  will  of  the  Grinnell  v.  Cook,  8  Hill  (N.  Y.),  485; 

plaintiffs.     If,  in  the  oj)inion  of  the  Bissell  v.  Pierce,  28  N.  Y.  253. 

109 


§  166.]  OKDINAKY    BAILMENTS.  [PART    I. 

and  fed  the  stock  without  any  knowledge  on  the  part  of  the 
plaintiff,  the  mortgagee,  and  received  no  pay.  Therefore,  when 
the  action  was  brought  by  the  plaintiff  to  get  possession  of  the 
stock  under  his  mortgage,  the  question  of  priority  between  the 
two  liens  was  presented.  The  court  say:  "When  defendant 
took  this  stock  to  pasture  he  took  it  knowing  (for  the  filing  of 
the  mortgage  notified  him)  that  plaintiff  had  a  mortgage  upon 
it  to  secure  an  indebtedness  not  yet  due.  He  knew  that  such 
mortgage  constituted  an  existing  lien  upon  such  stock  at  the 
time  he  took  it  to  pasture.  (Citing  statute.)  He  knew  that 
plaintiff  had  a  right,  whenever  he  might  choose  to  do  so,  to 
take  possession  of  the  stock,  for  the  mortgage,  of  which  he  had 
notice,  so  provided.  He  knew,  for  the  said  section  4358  so  de- 
clares, that  no  person  whose  interest  is  subject  to  the  lien  of 
the  mortgage  may  do  any  act  which  will  substantially  impair 
the  mortgagee's  security ;  he  knew  that  to  just  the  extent  that 
another  charge  was  put  upon  the  property  prior  to  plaintiff's 
mortgage,  his  security  would  be  impaired.  He  knew  that 
under  the  law  and  terms  of  the  mortgage  the  mortgagors  were 
entitled  to  the  possession  of  the  stock,  and  that  in  reason  and 
according  to  custom  the  mortgagors  so  in  possession  would  be 
expected  to  care  for  and  feed  them.  For  the  purpose  of  deter- 
mining- his  right  in  this  matter  he  knew  of  these  facts  as  well 
as  though  he  had  been  personally  and  actually  informed  of 
them  at  the  very  time  he  took  the  stock." 

In  the  case  of  Chapman  v.  First  Nat.  Barik,^  the  question 
arose  as  to  whether  a  lien  created  by  statute  in  favor  of  livery- 
stable  keepers  for  the  keeping  and  feeding  of  stock  should  have 
precedence  over  a  mortgage  on  the  animals  previously  given 
by  their  owner;  and  in  that  case  it  Avas  held  that  "A  statute 
giving  livery-stable  keepers  a  lien  for  the  keeping  of  animals 
placed  in  their  charge  without  the  knowledge  or  consent  of 
the  mortgagee  does  not  make  such  lien  superior  to  that  of  a 
prior  duly  recorded  mortgage  on  the  animals,  even  though  the 
law-day  has  passed  and  the  animals  are  still  in  the  mortgagor's 
possession."  In  this  case  there  is  a  large  number  of  cases 
cited  both  in  briefs  and  in  the  opinion  of  the  court. 

§  166.  Other  questions  previously  discussed. —  The  dis- 
cussion of  this  subject  in  a  former  chapter  of  this  book  will  be 
sufficient  as  to  the  other  questions  that  present  themselves. 

198  Ala.  528.  23  L.  R.  A.  7a 
110 


CHAPTER  XI. 


LOCATIO  CUSTODI^. 


§  167.  The  letting  of  care  and  cus- 
tody of  the  thing  for  hire. 

168.  What    this    subdivision    em- 

braces. 

169.  Depositum. 

■    170.  The  subject  discussed. 

171.  Warehouseman. 

172.  Public  warehouses. 

173.  Bonded  warehouses. 

174.  Delivery  —  To  create  liability. 

175.  Sale  or  bailment. 

176.  The  warehouse  receipt. 

177.  Warehousemen    may    insure 

the  property. 

178.  Usage  and  general  course  of 

business  to  a  certain  extent 
defines  the  duty  of  ware- 
houseman as  bailee. 

179.  At  common  law  a  warehouse 

receipt  in  a  technical  sense 
is  not  negotiable. 

180.  Warehouseman  not  permitted 

to  impeach  his  receipt. 

181.  Negotiability  of  receipt  pro- 

vided by  statute. 

182.  Common  carriers,  when  ware- 

housemen. 

183.  As  to  goods  awaiting  delivery. 

184.  The  New  Hampshire  rule. 

185.  The  third  class  of  cases. 

186.  Wharfingers. 

187.  When  the  liability  begins. 

188.  When  the  liability  ends. 

189.  Factors  or  commission  mer- 

chants. 

190.  Storage-house  keepers. 

191.  Some  of    the    duties    of  the 

bailor. 

192.  Dangerous  articles. 


§  193.  When  the  liability  of  the  stor- 
age-house keeper  begins. 

194.  When  the  liability  ends. 

195.  Storage-house     keepers     and 

warehousemen  the  same. 

196.  Safe  deposit  and  trust  compa- 

nies. 

197.  These    deposits    not    gratui- 

tous —  Differ  from  a  mere 
depositum, 

198.  The  natui'e  of  the  bail- 
ment and  the  diligence  re- 
quired. 

199.  Other  classes  of  custodi- 
ans. 

200.  Liability  of  bailee  in  custodice 

bailments. 

201.  When  does  the  liability  com- 

mence and  end. 
203.  Proper  place  and  kind  of  stor- 
age. 

203.  Diligence  must  keep  pace  with 

improvements. 

204.  Proof  of  negligence. 

205.  Does  the  burden  of  proof  of 

negligence  shift. 

206.  The  question  summed  up  and 

the  rule  settled. 

207.  Contributory  negligence. 

208.  Negligence  of  servants. 

209.  Unauthorized  use  of  chattels. 

210.  Delivery,  misdelivery,  non-de- 

livery. 

211.  Confusion  of  goods. 

212.  Criminal  liability. 

213.  Termination. 

214.  Conversion. 

215.  Compensation  —  Lien. 


§  167.  The  letting  of  care  and  custody  of  the  thing  for 
hire. —  This  is  one  of  the  mutual-benefit  bailments,  or  more 

111 


§§  168-170.]  OKDINARY    BAILMENTS.  [PAKT   I, 

particularly  speaking,  one  of  the  "hiring"  or  "locatio"  bail- 
ments, and  the  general  rule  governing  liability,  where  the  bail- 
ment is  for  the  benefit  of  both  parties,  obtains.  The  bailor 
and  bailee  are  held  to  ordinary  diligence  and  are  liable  for  ordi- 
nary negligence, 

§  168.  What  this  subdivision  embraces. — "Within  this  subdi- 
vision are  included  numerous  and  important  classes  of  business. 
It  embraces  some  of  the  most  important  transactions  in  our 
business  world,  and  the  liability  and  duty  of  the  parties  is  fixed 
and  settled  by  the  proper  application  of  the  rules  governing 
the  mutual-benefit  bailment  relation.  The  extent  of  the  busi- 
ness falling  within  this  subdivision  is  almost  inestimable.  As 
we  are  transported  by  rail  or  ship  into  our  great,  busy  com- 
mercial cities,  we  are  struck  with  the  immensity  of  the  trade 
in  the  handling  of  grain  and  produce  by  the  immense  elevators 
that  line  the  shores  of  the  principal  ports;  the  great  Avare- 
houses  in  operation  in  every  city  in  the  land  for  the  storage  of 
chattels  of  every  description;  and  these  but  constitute  one 
branch  of  the  business  under  consideration.  The  numerous 
trust  companies,  with  their  system  of  safe-deposit  vaults  for 
the  care  and  custody  of  money,  bonds,  stocks  and  securities; 
the  banking  houses  that  are  looking  after  the  special  deposits 
of  their  customers ;  the  wharfinger  who  receives  and  cares  for 
the  immense  quantities  of  freight  to  be  shipped  b}^  land  and 
sea, —  all  impress  us  with  the  importance  and  vastness  of  the 
interests  that  are  clustered  within  the  limits  and  confines  of 
this  important  subdivision  —  Locatio  custodice. 

§  169.  Depositiiin. —  To  the  custody  bailments  belong 

'-'' depositum  "  as  well  as  the  custodice  bailments,  where  care  and 
custody  of  the  subject  of  the  bailment  is  for  hire.  The  sub- 
division '•'- Depositum''''  has  already  been  discussed,  and  in  this 
chapter  we  are  to  deal  only  with  "  locatio  custodice  "  bailments, 
belonging  to  the  third  general  subdivision,  or  bailment  for  the 
benefit  of  both  bailor  and  bailee. 

§  170.  The  subject  discussed. —  The  usual  rights,  duties  and 
liabilities  of  the  parties  in  this  class  of  bailments  have  been  so 
fully  discussed  in  chapter  III  of  this  volume  ^  that  it  is  not 
deemed  necessary  to  further  treat  of  them  here.     We  shall 

1  Ante,  %%  32,  eta 
113 


CII.  XI.]  LOCATIO    CUSTODI^.  [§§  171,   172. 

therefore  confine  the  discussion  to  some  of  the  particuhir  or 
specific  kinds  of  the  "  locatio  custodim  "  bailments. 

§  171.  Warehouseman. —  A  warehouseman  has  been  defined 
to  be  "a  person  who  receives  goods  and  merchandise  to  be 
stored  iri  his  warehouse  for  hire."  ^  From  this  definition  it  may 
be  seen  that  this  comprises  a  large  and  important  class  of  busi- 
ness: those  who  follow  the  business  of  furnishino-  storaa-e  of 
chattels  for  hire,  such  as  the  storing  of  grain  or  furniture  or 
freight,  as,  for  example,  the  common  carriers  who  furnish  stor- 
age for  freight  that  is  often  left  beyond  the  limit  of  time  for 
which  they  are  liable  as  common  carriers;  the  proprietors  of 
flour  mills  who  store  grain  for  their  customers,  and  others  who, 
directly  or  indirectly,  become  custodians  of  property  and  re- 
ceive compensation  therefor. 

In  Owen  v.  BoyW-  the  court  in  its  opinion  used  this  language: 
"  The  building  or  apartment  where  the  salt  was  stored  was 
used  and  appropriated  by  the  occupant  not  for  the  deposit  and 
safe-keeping  or  selling  of  his  own  goods,  but  for  the  purpose  of 
storing  the  goods  of  others  placed  there  in  the  regular  course 
of  commercial  dealing  and  trade,  to  be  again  removed  or  re- 
shipped,  and  the  building  or  apartment  had  acquired  the  char- 
acter of  a  warehouse." 

The  court  in  the  case  of  Reg.  v.  Hill,  an  English  case,  de- 
fined a  warehouse  to  be  a  place  where  one  stores  or  keeps 
goods  which  are  not  immediately  wanted  for  sale. 

§  172.  Public  warehouses. —  In  some  of  the  states  statutes 
have  been  enacted  making  certain  warehouses  public  ware- 

1  Bouvier,  Law  Diet.  goods  stolen   were    in    that    cellar. 

2  23  Me.  47.  The  business  of  main-  There  was  no  inner  communication 
taining  stock-yards  for  the  reception  between  the  house  and  the  cellar,  but 
of  cattle  belonging  to  others  than  the  the  cellar  was  entered  by  a  stairway 
proprietors  of  tlie  yards  has  been  from  the  street.  It  was  objected  for 
held  to  be  analogous  to  the  business  the  prisoner  that  such  cellar  was  not 
of  warehousemen.  Del.,  L.  &  W.  R  a  warehouse  under  the  statute. 
Co.  V.  Centfal  Stock  Yard  T.  Co.,  19  Rolfe,  B.,  said:  "A  warehouse  in 
Atl.  185  (N.  J.).  The  prisoners  were  common  parlance  meant  a  place 
indicted  under  the  statute  for  break-  where  a  man  stored  or  kept  his  goods 
ing  and  entering  a  warehouse.  It  which  were  not  immediately  wanted 
appeared  that  the  prosecutor  occu-  for  sale,  and  there  was  no  reason  to 
pied  a  shop;  in  a  cellar  .under  the  suppose  that  the  legislature  used  the 
shop  he  kept  such  goods  as  he  had  term  in  this  statute  in  a  sense  repug- 
on  hand  at  the  time  of  the  auction  nant  to  its  ordinary  meaning." 

to  exjjose  for  sale  in  his  shop,  and  the 

8  113 


§  172.]  ORDINARY    BAILMENTS,  [PART   I. 

houses,  putting  upon  them  a  requirement  analogous  to  the  re- 
quirement of  innkeepers  and  carriers,  namely,  that  they  shall 
receive  and  care  for  the  property  presented  for  storage,  sub- 
ject, of  course,  to  the  limitation  that  it  is  fit  for  storage, 
and  that  the  price  must  be  either  paid  or  tendered  if  de- 
manded. This,  however,  is  not  generally  the  law;  ware- 
houses as  a  rule  are  private.  The  reasoning  with  reference  to 
warehouses  being  public  is  quite  fully  set  forth  in  the  opinion 
of  the  court  in  the  case  of  J^ash  v.  Page}  The  court  say : 
"When  he  undertakes  to  sell  at  public  auction  and  to  conduct 
the  business  as  a  public  warehouseman,  he  assumes  an  obliga- 
tion to  serve  the  entire  public,  and  has  no  right  to  select  his 
bidders  or  to  refuse  to  receive  the  tobacco  of  producers  when 
shipped  to  him.  This  obligation  exists  not  only  by  reason  of 
the  statute,  but  under  the  rule  of  common  law.  We  perceive 
no  difference  between  this  character  of  warehouses  and  that  of 
winehouses  or  grainhouses,  and  the  rule  applied  to  the  latter 
required  them  to  discharge  the  duty  of  receiving  the  wine  and 
grain  shipped  to  them  by  the  owner.  This  is  the  first  time  in 
the  history  of  the  state  that  warehousemen  controlled  and  regu- 
lated their  business  by  legislation  and  asserted  their  right  to 
select  their  customers,  including  both  the  producer  and  the 
buyer." 

In  some  of  the  courts  it  has  been  held  that  warehouses  which 
receive  grain  and  commodities  that  are  alike  and  mix  them, 
issuing  receipts  for  the  same,  selling  and  shipping  from  the 
common  mass,  are  public  warehouses.  But  generally  these 
opinions  have  been  founded  upon  the  statutes  of  the  particular 
states.  The  constitution  of  the  state  of  Illinois,  article  XIII, 
title  Warehouses,  defines  in  the  following  language  public  ware- 
houses: "AH  elevators  or  storehouses  where  grain  or  other 
property  is  stored  for  compensation,  w^hether  the  property 
stored  be  kept  separate  or  not,  are  declared  to  be  public  ware- 
houses." ^  It  may,  however,  be  generally  said  that  where  there 
is  no  statute  or  constitutional  provision  which  requires  cer- 
tain warehouses  to  be  public  warehouses,  a  warehouseman  is 
not  required  by  an}'"  general  rule  of  law  to  receive  goods  for 
storage  against  his  will,  but  that  the  relation  of  warehouseman 

1 80  Ky.  539.  2  National  Bank  v.  Langdon,  28  IlL  App.  401. 

114 


ClI.  XI.]  LOCATIO    CUSTODIiE.  [§§  173,  174. 

grows  out  of  the  contract  relation  of  bailor  and  bailee,  and  is 
not  analogous  to  an  innkeeper  or  common  carrier.^ 

§  173.  Bonded  warehouses. —  The  bonded  warehouses  are 
warehouses  that  are  designated  by  the  secretary  of  the  treas- 
ury of  the  United  States  in  which  are  to  be  stored  merchan- 
dise imported  into  the  United  States  until  such  time  as  the 
customs  duty  shall  be  paid.  Such  warehouses  are  usually  pri- 
vate warehouses,  and  are  in  the  custody  of  the  owner  of  the 
warehouse  and  some  customs  officer  designated  to  act  for  the 
United  States.  The  government,  however,  assumes  no  respon- 
sibility for  the  safe-keeping  of  the  merchandise.  Merchandise 
so  deposited  may  be  withdrawn  at  any  time  within  one  year 
upon  the  payment  of  the  duties  and  charges;  and  after  one- 
year  until  the  expiration  of  three  years  on  payment  of  the 
duty  and  charges  and  ten  per  centum  per  annum  in  addition.^ 

While  the  United  States  does  not  assume  any  responsibility 
for  the  safe  keeping  of  the  merchandise,  the  owner  of  the 
warehouse  is  under  the  same  obligation  and  liability  as  any 
other  warehouseman,  and  is  answerable  to  the  owner  of  the 
goods  to  the  extent  of  such  liabilit3^^ 

In  Machlin  v.  Fraser  ^  the  court  say :  "  Without  referring 
in  detail  to  the  laws  of  congress  regulating  the  rights,  duties 
and  powers  of  the  keepers  of  bonded  warehouses,  we  hold  that 
the  appointment  by  the  internal  revenue  department  of  store- 
keepers who  are  invested  with  the  joint  custody,  with  the  ware- 
housemen, of  the  warehouse  and  the  goods  stored  therein,  does 
not  lessen  in  any  degree  the  diligence  which  the  latter  as  bailees 
for  hire  are  by  the  general  laws  required  to  exercise  to  prevent 
fire  from  being  communicated  to  their  houses  or  to  the  goods  in 
their  custody.  The  right  of  the  storekeeper  to  ingress  into  the 
warehouse  for  the  discharge  of  certain  duties  imposed  upon 
him  by  law  does  not  exonerate  the  warehouseman  from  the 
use  of  at  least  ordinary  diligence  in  preventing  the  goods 
stored  therein  from  being  damaged  or  destroyed  by  the  reck- 
lessness or  carelessness  of  their  officer." 

§  174.  Delivery  —  To  create  liability. —  Liability  of  the 
warehouseman  can  only  be  created  by  a  delivery  of  the  prop- 

>  Delaware,  etc.  R.  Co.  v.  Central  ^ciaflin  v.  Myer,  75  N.  Y.  260; 
Stock  Yard  Co.,  4.1  N.  J.  Eq.  50.  Fairfax  v.  Central  R.  Co.,  67  N.  Y.  11. 

2U.  S.  R.  S.,  §§  2954-3008.  4  9  Bush  (Ky.),  3. 

115 


§  175.]  OKDIXAEY    BAILMENTS.  [PAKT    I. 

erty  for  storage;  that  is  to  be  stored  and  cared  for.  And  so  it 
is  necessary  that  the  property  should  come  fully  into  the  pos- 
session of  the  warehouseman  so  that  it  may  be  fully  under  his 
control,  or  the  control  of  his  servant  or  agent  as  bailee  and 
custodian.  It  is  not  really  necessary  that  the  property  should 
be  stored  in  the  warehouse  in  order  that  the  liability  of  the 
warehouseman  should  attach.  AVhere  the  property  has  been 
received  upon  his  premises,  and  is  under  his  control,  having 
been  delivered  to  him  expressly  or  by  implication,  so  that  it 
may  be  said  that  it  has  passed  from  the  possession  and  control 
of  the  owner  and  bailor  into  the  possession  and  control  of  the 
warehouseman,  he  is  liable  as  a  warehouseman;  and  where  the 
warehouseman  has  consented  to  take  charge  of  the  goods  be- 
fore the}'^  reached  his  warehouse,  he  has  been  held  to  be  liable 
from  that  moment.^ 

It  therefore  goes  without  saying,  if  there  has  been  no  de- 
livery of  the  property  and  no  acceptance,  either  actual  or  con- 
structive, there  would  be  no  liability  as  warehouseman. 

§  175.  A  sale  or  a  bailment. —  It  often  becomes  an  impor- 
tant question  to  determine  whether  the  delivery  of  the  prop- 
erty constitutes  a  bailment  for  custody  or  a  sale.  We  have 
alread}'-  discussed  the  question  in  a  general  way,^  and  it  is  per- 
haps unnecessary  to  enter  into  any  extended  discussion  of  it 
here. 

An  interesting  discussion  may  be  found  in  Lyon  v.  Lennon^ 
where  it  was  held  that  the  delivery  of  wheat  to  the  defendant, 
the  receipt  being  in  the  following  language:  "Received  of 
Harry  Lj^on,  53  bushels,  50  pounds  of  wheat.  Xot  transfer- 
able without  notice;"  the  testimony  and  explanation  of  the 
receipt  disclosing  that  the  defendant  was  in  the  habit  of  re- 
ceiving wheat  at  his  elevator  and  giving  receipts  therefor,  and 
that  on  presentation  of  the  receipt  he  would  pay  the  market 
price  at  the  date  of  presenting  the  same,  that  such  a  trans- 
action was  a  sale  and  not  a  custody  bailment.  The  court  in 
the  opinion  say:  "We  recognize  the  doctrine  that  if  wheat  is 
delivered  in  pursuance  of  a  contract  of  bailment,  the  mere  fact 

iDucker    v.    Barnett,   5    Mo.    97;    Pa.  St.  Ill;  Farrell  v.  Richmond  R. 
Story  on   Bailm.    (9th   ed.),   §    445:     Co.,  102  N.  C.  890. 
Merrill  v.  Old  Colony  R.  Co.,  11  Al-        "-Ante,  §  — . 
len  (Mass.),  80;  Rogers  v.  Stophel,  B2        3 106  Ind.  567. 

116 


CU.  XI.]  LOOATIO    CUSTODIJE.  [§   ITO. 

tbat  it  is  mixed  Avith  a  mass  of  like  quality,  with  the  knowl- 
edge of  the  depositor  or  bailor,  does  not  convert  that  into  a 
sale  which  was  originally  a  bailment.  Upon  the  facts  in  this 
case  there  was  no  bailment.^ 

Where  grain  is  received  by  a  dealer  under  a  contract,  either 
express  or  implied,  to  pay  the  person  delivering  it  the  market 
price  whenever  he  chooses  to  demand  it,  and  such  grain  is 
mixed  with  other  of  like  quality  in  bins  from  which  shipments 
are  being  made  daily,  there  being  no  understanding  that  the 
owner  shall  hate  the  right  to  demand  either  his  own  or  a  like 
quality  of  other  grain  in  return,  the  dealer  becomes  the  owner 
of  the  grain  and  is  liable  to  pay  for  it  whenever  called  upon. 
In  such  a  case  the  contract  from  the  beginning  furnishes  the 
criterion  by  which  the  price  is  to  be  fixed,  and  it  is  not  invalid.^ 

§  176.  The  warehouse  receipt. —  On  receipt  of  the  prop- 
erty the  warehouseman,  or  bailee,  should  in  due  course  of  busi- 
ness deliver  to  the  bailor,  the  owner  of  the  property,  a  receipt 
for  the  same.  There  is  no  particular  form  of  receipt  required ; 
usually  it  contains  the  date  the  property  is  received,  with  a 
description  of  the  property,  from  whom  received,  and  an 
agreement  to  redeliver  the  property  on  demand  to  the  bailor 
or  his  order. 

It  is  not  unusual  for  an  elevator  receipt  to  contain  an  agree- 
ment, in  connection  with  the  receipt,  providing  as  to  how  the 
property  shall  be  kept  and  the  amount  to  be  charged,  and 
often  putting  upon  the  property  a  lien  for  the  payment  of 
money.  In  many  of  the  states  the  receipt  to  be  given  is  regu- 
lated by  statute,  and  often  the  statutes  require  certain  formali- 
ties; the  courts  have  often  been  called  upon  to  determine  what 
shall  be  deemed  a  proper  receipt. 

"A  warehouse  receipt  need  not  be  in  any  particular  form. 
An  instrument  intended  simply  as  a  memorandum  of  the 
amount  on  storage,  if  signed  by  the  warehouseman,  has  an  as- 
signable quality,  and  an  indorsement  and  delivery  of  it  to  one 

1  Nelson   v.  Brown,   44  Iowa,  475.  constitutes  a  contract  of i bailment, 

The  court  held  that  a  contract  ac-  which  is  converted  into  a  sale  when- 

knowledging  the  receipt  of  grain  for  ever  the  bailee  disposes  of  the  grain. 

storage,  "  loss   by  fire  and  the  ele-  Nelson  v.  Brown,  53  Iowa,  455. 

ments  at  the  owner's  risk,"  with  the  -  McConnell    v.   Hughes,   29    "Wis. 

option  to  the  party  receipting  it  to  537;  Richardson  v.  Olmstead,  74  111. 

return  grain  of  equal  test  and  value,  213. 

117 
I 


§  176,]  OEUIXAEY    BAILME^'TS.  [PAET    I. 

who  makes  advances  upon  the  faith  of  it  renders  the  Tvare- 
houseman  liable  to  the  holder  of  it  for  the  goods  it  represents."  ^ 
And  in  Harris  v.  Bradley^  the  court  held  that  an  instrument 
executed  and  signed  by  warehousemen,  in  the  following  words, 
"  Eeceived  in  store  for  account  of  B.  &  W.,  3,000  sacks  of  corn," 
is  a  warehouse  receipt,  having  an  assignable  or  negotiable 
value.^ 

It  has  been  held  by  some  of  the  courts  that  where  the  receipt 
was  given  by  one  who  is  not  a  warehouseman,  it  will  not  be 
held  to  be  good  in  the  hands  of  an  assignee  as  against  the  cred- 
itors  of  the  owner.  In  the  case  of  Geilfuss  v.  Corrigan  et  al.," 
the  supreme  court  of  Wisconsin  so  held.  In  that  case  storage 
receipts  were  issued  by  a  debtor  to  its  creditor  on  a  quantity  of 
pig  iron  held  in  its  yards  for  the  purpose  of  allowing  its  cred- 
itor to  raise  money  upon  the  receipts  as  collateral.  The  iron 
was  not  placed  in  the  hands  of  a  regular  warehouseman  for  the 
reason  that  it  would  be,  as  the  evidence  shows,  less  expensive 
for  the  company,  debtor,  to  issue  the  receipts  itself.  The  receipts 
were  issued  and  assigned,  and  afterwards  the  property  was 
levied  upon  by  a  creditor.  The  court  held  that  the  transaction 
could  not  be  a  pledge  of  the  property  for  the  reason  that  it  was 
not  in  the  possession  of  the  pledgee;  that  it  was  not  a  chattel 
mortgage  for  the  reason  that  there  was  no  sale  with  a  defeas- 
ance clause.  The  court  say:  ^^ Bona  fides  does  not  avail  the 
pledgee  in  the  absence  of  delivery  and  possession  either  actual 
or  constructive.  There  was  confessedly  no  actual  delivery  here, 
and  the  only  thing  that  can  be  claimed  to  be  a  symbolical  or 
constructive  delivery  is  the  indorsement  and  delivery  of  the 
false  receipts;  hence  the  question  comes  whether  a  delivery  of  ■ 
the  receipts  under  the  circumstances  is  a  constructive  delivery 
of  so  much  iron.  Had  they  been  in  fact  warehouse  receipts, 
the  transfer  and  indorsement  thereof  by  way  of  pledge  would 
have  operated  as  a  sufficient  constructive  delivery  of  the  prop- 
erty both  by  the  common  law  and  by  the  statute. 

"Bills  of  lading  and  railroad  receipts  are  by  statute  placed 
upon  the  same  footing.  The  reasons  for  this  rule  are  very  ap- 
parent.    In  such  cases  the  property  itself  is  in  the  hands  of  a 

1  Jones  on  Pledges,  sec.  298.  8  70  N.  W.  30G. 

2  Harris  v.  Bradley,  2  DilL  (U.  S.)  284 

118 


CH.   XI.]  LOCATIO    CUSTOUI^E.  [§   176. 

third  person  or  corporation  instead  of  in  the  possession  of  the 
vender  or  pledger.  Consequently  it  does  not  furnish  any 
false  basis  of  credit,  nor  is  any  creditor  deceived,  because  it  is 
well  understood  that  goods  in  the  hands  ofwarehouseraen  or 
carriers  are  or  may  be  the  property  of  others,  and  by  the  long 
usage  of  trade  subject  to  just  this  mode  of  transfer.  No  such 
considerations,  however,  apply  in  the  case  of  goods  in  the  pos- 
session of  the  vender  or  pledger,  or  in  some  third  person  who 
is  not  a  warehouseman  or  wharfinger,  and  we  know  of  no  rule 
which  makes  the  mere  delivery  of  a  receipt  a  constructive  de- 
livery of  the  property  in  pledge  in  such  a  case." 

In  Shepherdson  v.  Gary  ^  the  court  say :  "  To  uphold  the  re- 
ceipt as  a  proper  warehouse  document  transferring  the  title  to 
the  propert}^  and  operating  as  a  good  constructive  deliverj'^  of 
it  to  the  vendee,  it  must  in  all  cases  distinctly  appear  that  it 
was  executed  by  a  warehouseman,  one  openly  engaged  in  these 
cases  and  in  the  usual  course  of  trade."  If,  however,  it  should 
appear  that  the  goods  were  placed  in  the  possession  of  a  third 
person  as  custodian  by  the  bailor,  and  an  order  given  upon  the 
custodian  of  the  goods  directing  him  to  hold  the  property  for 
the  pledgee,  and  this  is  brought  home  to  the  knowledge  of  the 
custodian,  in  such  case  the  courts  have  held  that  it  would  be  a 
sufficient  delivery  and  change  of  possession  of  the  property, 
and  this  for  the  reason  that  the  property  is  placed  beyond  the 
control  of  the  pledgor  or  vendor. 

In  the  case  of  Sinsheimer  et  al.  v.  Whitely'^  the  court  held 
that  the  receipt  given  was  not  a  warehouse  receipt;  "  that  where 

129  Wis.  34-42;  Whitaker  v.  Sum-  goods  mentioned  in    such  receipts. 

ner,20  Pick.  399;  Tuxworth  v.  Moore,  State  v.  Bryant,  63  Md.  66.  A  receipt 

9  Pick.  347.  for  a  quantity  of  petroleum,  given 

243  Pac.  1109;  Lowrie  v.  Executrix,  to  the  owner  by  the  superintendent 

75  Cal.  349.     "  A  receipt  by  A.  B.  &  of  his  factory,  where  a  larger  quan- 

Co.,  in  form:   Received  on   storage  tity  was  stored,  no  oil  being  set  apart 

in  my  canning  house,  from  E.  B.  M.  as  covered  by  the  receipt,  which  was 

&  Co.,  seventeen  hundred  and  twenty  subsequently     transferred    by     the 

cases  of  3x  tomatoes,  my  own  pack-  owner,  by  indorsement,  as  collateral 

ing.     Deliverable  to  order  of  E.  B.  M.  security  for  a  loan,  was  held  not  a 

&  Co.,  only  on  production  of  this  re-  wareliouse  receipt  within  the  mean- 

ceipt   properly   indorsed,'  was    held  ing  of  the  New  York  statute  (Laws 

not   a   'warehouse    or    storage'   re-  1858,  ch.  326),  providing  that  any  per- 

ceipt,  within    Maryland   Acts   1876,  son  to  whom  warehouse  receipts  are 

ch.  262,  punitshing  the  unlawful  de-  transferred  by  indorsement  siiall  be 

livery   by   unauthorized   persons  of  deemed  the  owner  so  far  as  to  give 

119 


§   177.]  OliDIXARY    BAILMENTS.  [PAKT    I. 

produce  is  left  with  the  weigher,  who  stores  it  without  charge, 
a  receipt  given  by  the  weigher,  merely  reciting  that  the  prod- 
uce had  been  weighed,  and  stating  its  weight,  is  not  a  ware- 
house receipt,  the  transfer  of  which  as  security  constitutes  a 
delivery  of  the  produce,  rendering  the  pledge  valid  as  against 
attaching  creditors  of  the  pledgor." 

From  this  discussion  of  what  is  not  a  receipt  can  be  under- 
stood what  is  required  in  a  valid  receipt. 

§177.  Warehousemen  may  insure  the  property. —  There 
seems  to  be  no  question  but  that  the  warehouseman  or  wharf- 
inger may  insure  the  property  in  his  possession  in  his  own 
name,  and  in  case  of  loss  collect  the  whole  amount  of  insur- 
ance for  the  satisfaction  of  his  claims  against  the  goods  or 
property,  holding  the  residue  for  the  owner,  and  no  permission 
from  or  notice  to  the  owner  is  necessary  to  effect  such  in- 
surance.^ 

It  may  be  said  to  be  a  general  rule  that  the  warehouseman 
is  not  bound  to  insure  the  property  left  in  his  custody  unless 
there  is  some  special  undertaking  so  to  do,  in  which  case  he 
would  be  bound  to  do  so;-  but  circumstances  might  be  such 
that  the  courts  would  hold  that  ordinary  diligence  would  re- 
quire the  custodian  to  insure  the  property.  As,  for  example, 
where  the  property  belongs  to  the  estate  of  an  infant  who  has 
little  or  no  knowledge  or  experience  in  matters  of  business, 
and  ordinary  business  care  and  prudence  would  demand  that 
the  property  be  insured,  where  by  the  terms  of  the  contract  of 
storage,  or  by  agreement,  the  warehouseman  agrees  to  insure 

validity  to  any  pledge,  lien  or  trans-  ton  Press  Co.,  89  Ten n.  1.  '"The  law 
fer  by  such  person.  Yenni  v.  Mc-  seems  to  be  well  settled  that  a  per- 
Namee.  45  N.  Y.  614  A  weighmas-  son  having  goods  in  his  possession  as 
ter's  ticket,  with  the  word  'stored'  consignee  or  on  commission  may  in- 
written  on  its  face,  is  not  a  ware  sure  them  in  his  own  name,  and  in 
houseman's  receipt  entitling  the  the  event  of  loss  recover  the  full 
holder  to  recover  thereon,  under  amount  of  the  insurance,  and,  after 
Iowa  Code,  sec.  2171,  regardless  of  satisfying  his  own  claim,  hold  the 
the  disposal  of  the  grain  covered  balance  as  trustee  for  the  owner.'" 
thereby,  Cathcart  v.  Snow,  64  Iowa,  Hough  v.  Peoples'  F.  Ins.  Co.,  36  Md. 
584."  398;  .^tna  Ins.  Co.  v.  Jackson,  16  B. 
1  Home  Ins.  Co.  V.  Baltimore  Ware-  Mon.  (Ky.)  242;  Siter  v.  Moritz.  13 
house  Co.,  98  U.    S.   527;  Baxter  v.  Pa.  St.  218. 

Hartford  Ins.  Co.,  11  Biss.  (U.  S.)  30G;        2StoryonBailm.,  sec.  456;  Schouler 

Lancaster  Mills  v.   Merchants'  Cot-  on  Bailm.,  sec,  116. 

120 


CH.  XI.] 


LOCATIO    CUSTODI.E. 


[§  1T7. 


the  property  and  fails  to  do  so,  he  is  liable  in  case  of  loss  to  the 
owner  because  of  his  neglect.  If,  however,  the  owner  did  not 
rely  upon  the  warehouseman,  and  etfected  the  insurance  him- 
self, he  could  not  sustain  an  action  against  him  for  the  neglect.^ 
Mr.  Justice  Gray,  in  Eastern  R.  Co.  v.  Relief  Fire  Ins.  6'(9.,'^says : 
"By  the  law  of  insurance  any  person  has  an  insurable  inter- 
est m  property  by  the  existence  of  which  he  receives  a  benefit, 
or  by  the  destruction  of  which  he  will  suffer  a  loss,  whether  he 
has  or  has  not  any  title  in  or  lien  upon  or  possession  of  the 
property  itself.  Thus,  a  common  carrier  has  an  insurable  in- 
terest in  the  goods  carried  by  him,  which  he  may  insure  to 
their  full  value  without  regard  to  his  liability  to  the  owner  of 
the  goods.  So  has  a  warehouseman,  although  he  is  liable  only 
for  his  own  neo-lio-ence  to  the  owner.  And  the  charterer  of  a 
vessel  who  has  covenanted  to  pay  its  value  in  case  of  loss,  or 
to  obtain  insurance  upon  it  against  the  usual  risk,  has  an  insur- 
able interest  in  the  vessel." 


1  Lancaster  Mills  v.  Merchants'  Cot- 
ton Press  Co.,  89  Tenn.  1.  The  su- 
preme court  of  Georgia,  in  Zone  v. 
Hannah,  106  Ga.  61,  lield  that  "  a 
statement  in  a  warehouse  receipt, 
■•all  cotton  stored  with  us  fully  in- 
sured,' does  not  constitute  a  contract 
between  the  parties,  requiring  the 
warehouseman  to  insure  the  cotton 
of  his  customers,  and  rendering  iiini 
liable  for  the  value  of  the  same  when 
destroyed  by  fire."  But  in  Thomp- 
son V.  Thompson,  73  Minn.  379,  81  N. 
W.  204,  it  was  held  that  the  storage 
receipt  created  an  obligation  by  im- 
plication to  insure  the  property.  In 
that  case  the  blank  storage  receipts 
used  were  in  the  following  language: 
"La  Grange  Elevator,  of  Appleton, 
Minn. 

"Smith  &  Thompson,  Proprietors. 

" bush.  No.  wheat  

price cents.     Received  in  store 

,  189 — ,  account  of ,  or 

order,  bushels  No. wheat. 

Which  amount,  kind  and  grade  will 
•be  delivered  to  the  holder  of  this  re. 
ceipt  upon  surrender  thereof,  subject 
to  the  following  conditions  as  to  stor- 

1 


age,  etc. :  The  first  fifteen  days  from 
date  thereof,  or  fractional  part 
thereof,  one-lialf  cent  per  bushel,  but 
shall  not  exceed  four  cents  for  six 
months.  This  charge  for  storage 
shall  cover  loss  by  fire  only.  All 
other  damages  by  the  elements,  or  by 
heating,  or  not,  or  by  the  act  of  God, 
or  wliich  in  any  way  have  been 
caused  by  the  holder  of  this  receipt, 
shall  be  excepted. 
"  Smith  &  Thompson,  Proprietors." 
These  forms  were  used  in  receipt- 
ing for  a  large  amount  of  wheat  re- 
ceived. The  elevator  and  contents 
were  destroyed  by  fire.  The  action 
was  brought  to  recover  the  value  of 
the  wheat.  Held,  that  this  storage 
receipt  by  implication  constituted  a 
contract  of  insurance  by  the  ware- 
houseman against  loss  by  lire. 

2  98  Mass.  420-423;  3  Kent's  Com. 
276;  Insurance  Co.  v.  Chase,  5  Wall. 
513;  Wilson  v.  Jones,  L.  R.  3  Exch. 
150,151;  Carnley  v.  Cohen,  3  B.  & 
Ad.  478;  Waters  v.  Monarch  Assur- 
ance Co..  5  El.  &  Bl.  870;  Oliver  v. 
Green,  3  Mass.  133;  Bartlett  v.  Wal- 
ter, 13  Mass.  267. 
21 


§   178.]  OKDINAKY    BAILMENTS.  [PAET    I. 

In  White  V.  Ifadison  ^  the  court  of  appeals  of  New  York  held 
that  a  sheriff  who  had  seized  goods  upon  an  attachment  had 
such  an  interest  in  the  goods  as  would  warrant  hira  in  effect- 
ing insurance  of  the  property,  and  that  a  policy  taken  by  him 
through  his  deputy  would  be  valid.  The  court  say:  "I  think 
the  sheriff  had  an  insurable  interest  in  the  goods,  and  that  the 
policy  was  valid.  The  sheriff,  by  the  seizure  on  the  attachment, 
acquired  a  special  property  in  the  goods,  which  would  have 
enabled  him  to  maintain  an  action  and  to  recover  their  full 
value  against  any  one  who  should  take  them  out  of  his  custody. 
Such  special  property  gave  him  an  insurable  interest.  It  was 
bis  duty  to  keep  the  property  safelj''  until  sold  or  released,  and 
he  was  chargeable  for  its  destruction  by  any  cause  against 
which  he  could  protect  it  by  ordinary  care,  if  he  was  not  sub- 
ject to  a  more  stringent  rule  of  responsibility.  Although  he 
was  under  no  obligations  to  insure,  he  could,  if  he  chose,  pro- 
tect himself  against  this  risk  by  insurance." 

§  178.  Usage  and  general  course  of  business  to  a  certain 
extent  defines  the  duty  of  warehouseman  as  bailee. —  As  we 
have  seen,  in  certain  cases  the  bailee  or  warehouseman  may 
discharge  his  full  duty  by  delivering  to  the  owner,  or  bailor,, 
or  to  his  assignee  of  the  property,  other  property  than  the 
identical  property  for  which  the  receipt  was  given,  if  the  prop- 
erty delivered  be  of  the  same  kind,  grade  and  quality  as  the 
subject  of  the  bailment.  Such  a  delivery,  however,  does  not 
in  all  cases  discharge  the  warehouseman  of  his  duty  in  the 
premises.  It  is  readily  understood  from  the  very  nature  of 
the  property  and  the  usual  course  of  dealing  that  a  storage-  | 
keeper  could  not  discharge  his  liability  as  keeper  of  chattels, 
such  as  furniture  and  manufactured  articles  placed  in  his  cus- 
tody for  safe  storage,  by  delivering  to  the  bailor,  or  his  as- 
signee, property  claimed  to  be  other  property  than  that  which 
was  the  subject  of  the  bailment,  claimed  to  be  of  the  same 
kind,  equality,  quantity  and  value,  but  that  he  would  be  re- 
quired in  such  case  to  deliver  the  identical  propertv  which 
was  placed  in  his  custody  by  the  bailor.  On  the  other  hand,, 
where  grain,  as,  for  example,  wheat,  is  placed  in  the  warehouse^- 
unless  there  is  some  special  contract  to  the  contrary,  usage 

126  N.  Y.  117-126. 
123 


ITo.  5175. 


CH.  XI.]  LOCATIO    CUSTODI^.  [§  178. 

and  the  general  course  of  business,  which  is  well  known  to  the 
commercial  world  and  among  dealers,  would  permit  that  the 
warehouseman  might  deliver  to  the  bailor,  or  to  his  assignee, 
to  satisfy  the  receipt  which  was  given,  grain  of  the  same  grade, 
quality,  quantity  and  value. 

Now,  the  question  arises,  under  what  circumstances  and  to 
what  extent  is  the  one  rule  or  the  other  to  be  followed  in 
discharging  the  duty  incumbent  upon  the  warehouseman. 
The  circuit  court  of  the  state  of  Khode  Island,  in  the  case  of 
Fifth  National  Bank  v.  Providence  Warehouse  Co.^  discussed 
this  question  to  some  extent.  In  that  case  a  quantity  of  eggs 
was  received  for  storage  by  the  defendant,  and  the  following 
receipt  was  given  for  them : 

"Providence,  September  28,  1888. 
"Providence  Warehouse  Company: 

"  Received  on  storage  of  A.  F.  Alver- 
son  &  Company,  subject  to  the  order 
of  the  Fifth  National  Bank,  390  cases 
Marks.  -|   eggs,  to  be  delivered  according  to  the 

indorsement  hereon,  but  only  on  the 
surrender  and  cancellation  of  this  re- 
ceipt, and  on  payment  of  the  charge 
payable  thereon. 
(^  "  S.  J.  Foster,  Mgr." 

There  were  no  distinguishing  marks  on  the  cases  of  eggs, 
and  none  noted  in  the  margin  of  the  receipt;  the  eggs  were 
received  and  stored  by  the  defendant.  Upon  this  property  the 
owner,  a  produce  dealer,  borrowed  of  the  plaintiff  the  sum  of 
$1,950  upon  the  warehouse  receipt;  the  owner  had  other  eggs 
in  the  warehouse,  some  of  which  may  have  been  stored  with 
these,  but  this  particular  lot  was  specially  known  to  the  man- 
ager and  servants  of  the  warehouse  from  the  fact  that  a  por- 
tion of  the  property  became  wet  when  the  defendant  was  put- 
ting it  into  the  warehouse.  The  plaintiff,  who  had  loaned  the 
money,  brought  this  action  to  recover  the  value  of  the  eggs. 
The  contention  of  the  defendant  in  this  case  was,  that  having 
kept  other  cases  of  eggs  belonging  to  the  owner  subject  to  the 
bailee's  order,  the  bank,  it  had  the  right,  in  the  absence  of  dis- 
tinguishing marks,  to  deliver  the  eggs  stored  under  this  re- 

117R.  I.  112,  9L.  R  A.  2G0. 
123 


Stored  in  Section  B. 


§  178.]  OEDIKAEY    BAILMENTS.  [pART    I. 

ceipt,  and  that  therefore  it  was  not  liable  for  such  delivery 
Avithout  the  plaintifiF's  order,  and  to  support  this  contention  the 
defendant  cited  several  cases.  The  court  in  its  opinion  said: 
"  These  are  cases  where  grain  was  deposited  according  to 
usage  in  common  bulk,  being  necessarily  indistinguishable,  and 
the  several  depositors  were  held  to  be  tenants  in  common  of 
the  common  stock. ^ 

"Consequently,  in  the  first  case  (cited  by  defendant)  loss  by 
diminution  or  decay  was  to  be  home  pro  rata;  in  the  second, 
where  there  was  a  comminglino-  of  grain  of  the  warehouseman, 

COO  ■ 

who  was  publicly  selling  and  shipping  from  the  common  mass, 
and  apparent  ownership  and  authority  to  sell  was  conferred 
upon  him,  so  that  the  depositor  was  estopped  to  assert  title 
against  an  innocent  purchaser  in  the  usual  course  of  business; 
in  the  third  case,  where  the  warehouseman  sold  in  the  same 
manner,  receiving  enough  to  supply  the  depositor,  the  bailment 
continued,  and  the  warehouseman  was  not  liable  for  loss  from 
an  accidental  tire  without  negligence.  These  cases  are,  there- 
fore, quite  different  from  the  case  at  bar,  and  depend  upon  very 
different  considerations,  aside  from  the  different  point  involved. 
It  is  obvious  that  grain  in  an  elevator  is  practically  incapable 
of  distinction  and  can  hardly  be  stored  without  commingling; 
but  it  is  not  so  with  merchandise  packed  in  cases.^  The  ware- 
houseman can  place  them  in  separate  lots  or  he  can  mark  them 
with  the  number  of  the  receipt."  The  court  further  say:  "In 
the  case  before  us  the  ec^gs  were  delivered  without  an  order 

OO 

from  the  plaintiff  with  full  knowledge  that  they  were  covered 
with  the  receipt  which  stipulated  that  they  were  subject  to 
the  bailee's  order. 

"  It  is  urged  in  justification  that  these  eggs  were  out  of  cold 
storage,  and  other  eggs  were  kept  in  cold  storage  to  answer 
the  receipt.  To  this  the  plaintiff  replies  that  the  eggs  covered 
by  this  receipt  were  fall  eggs,  fresher  than  others  and  of 
greater  value.  However  this  may  have  been,  we  think  that  it 
is  clear  that  the  plaintiff,  under  this  receipt,  has  the  right  of  a 
bailor,  and  is  not  bound  to  receive  other  property  of  this  de- 
scription in  place  of  its  own  when  the  bailee  has  intentionally 

iDole  V.  Olmstead,  36  111.  150,  41     National  Excb.  Bank  v.  Wilder,  34 
111.  344;  Preston  v.  Witherspoon.  109    Minn.  149. 
Ind.  457;  Rice  v.  Nixon,  97  Ind.  99;        2  Jones,  Pledges,  30a 

124 


CH.  XI,]  LOCATIO    CUSTODIES.  [§  178. 

delivered  it  to  another.  The  transferee  has  the  right  to  sup- 
pose that  the  described  property  is  held  subject  to  his  order. 
How  is  he  to  know  that  the  warehouseman  has  minified  it  with 
other  like  property  so  as  to  be  indistinguishable  from  it,  if  such 
were  the  case  ?  Naturally,  the  warehouseman  is  bound  to  some 
.  degree  of  care  and  responsibility  to  enable  him  to  deliver  what 
he  receives.  If  it  is  enough  that  he  deliver  anything  answer- 
ing the  same  general  description,  a  warehouse  receipt  is  indeed 
a  precarious  security.  The  delivery  to  Alverson  to  deposit  the 
eggs  is  no  defense,  since  by  its  contract  the  defendant  assumed 
the  obligation  to  deliver  upon  the  order  of  the  plaintiff,  know- 
ing from  the  course  of  business  that  the  plaintifif  had  advanced 
money  upon  the  receipt." 

In  the  case  of  Stewart  v.  Plicenix  Ins.  Co}  receipts  were  given 
for  forty  bales  of  cotton  variously  marked,  deliverable  only 
upon  the  indorsement  of  the  secretary  of  the  bailee.  The  de- 
positor failing  in  business,  the  warehouseman  notified  the  sec- 
retary of  the  company  that  the  creditors  of  the  bailor  were 
replevying  cotton  which  he  had  in  store,  and  requested  the 
secretary  to  take  forty  bales  to  secure  the  company  or  to  de- 
fend the  replevying  suit.  Upon  this  the  secretary  of  the  com- 
pany inquired  of  the  warehouseman  if  the  same  identical  bales 
that  were  deposited  with  him  were  in  his  possession.  To  said 
inquiry  the  bailee  answered  that  they  were  not.  Thereupon 
the  secretary  of  the  company  declined  to  accept  the  forty  bales 
of  cotton  offered,  and  afterwards  brought  suit  to  recover  the 
value  of  the  cotton  that  was  deposited.  Oral  testimony  was 
sought  to  be  given  upon  the  part  of  the  warehouseman  to  prove 
that  there  was  an  understanding  that  the  receipt  could  be  satis- 
fied by  the  delivery  of  other  cotton.  The  court,  however,  ex- 
cluded this  testimony  upon  the  ground  that  it  would  tend  to 
vary  and  alter  a  written  contract,  and  the  plaintiff  had  judg- 
ment. 

The  Wisconsin  court,  in  TTale  v.  Milwaukee  Dock  Co.^  held 
"  that  a  warehouse  receipt  was  a  contract  binding  the  receiptor 

^  9  Lea,  104.  bearer  of  the  receipt  on  return  of  the 
2  29  Wis.  483.  "The  meaning  of  same  and  payment  of  storage;  and 
this  (receipt)  clearly  shows  that  the  the  warehouseman,  not  less  than  the 
same  fifty-four  barrels  received  in  ship-owner  or  carrier,  is  bound  to  de- 
store  and  described  as  mess-pork  are  liver  the  identical  goods  received  in 
de.iverable  or  to  be  delivered  to  the  fulfillment  of  his  contract." 

125 


§    179.]  OEDINAKY    BAILMENTS.  [PAET   I. 

to  safely  store  and  deliver  the  same  goods  to  the  holder  of  the 
receipt,  except  in  those  cases  where  there  is  some  expressed 
agreement  or  known  usage  of  trade  which  shows  that  the  par- 
ties otherwise  intended." 

In  Goodtoin  v.  Scanlon^  the  court  held  "that  the  defendants 
being  warehousemen,  and  having  given  their  storage  receipt 
for  a  specific  number  of  barrels  of  pork,  could  not  set  up  the 
want  of  segregation  to  avert  their  liability;  that  by  their  re- 
ceipt they  charged  themselves  and  were  estopped;  that  if  a 
warehouseman  would  protect  himself  from  liability  in  such 
cases,  he  could  do  so  by  describing  the  goods  as  part  of  a  larger 
lot  and  inseparable,  or  in  bulk  with  the  goods  of  others,  which 
would  give  notice  to  any  transferee  of  the  warehouse  receipt 
of  the  condition  of  the  goods  and  enable  him  to  use  necessary 
diligence  in  obtaining  the  title  to  specific  property."  Thus  it 
will  be  seen  that  the  usage  of  trade  and  the  general  course  of 
business  have  been  controlling  factors  in  determining  the  ques- 
tion involved;  that  where  the  property,  like  grain  in  an  eleva- 
tor, is  from  its  nature  practically  incapable  of  distinction,  and 
where  the  storage  is  generally  understood  to  result  in  com- 
mingling of  the  same,  the  warehouse  receipt  can  be  satisfied 
by  the  delivery  of  grain  of  the  same  grade,  quality  and  quan- 
tity as  that  stored;  but  no  such  rule  as  this  could  be  said  to 
be  applicable  or  required  by  usage  or  the  usual  course  of 
business  where  the  property  stored  is  of  a  kind  that  it  may  be 
and  usually  is  kept  separate  and  by  itself.  As,  for  example, 
where  it  is  packed  in  cases,  or  where  it  is  by  its  very  nature 
capable  of  being  identified  and  known  by  its  appearance  and 
description;  like  furniture,  books,  cloths,  mechanical  tools,  and 
the  like.  This  distinction  must  necessarily  be  kept  in  view  in 
the  discussion  of  the  next  subdivision  of  our  subject. 

§  179.  At  common  law  a  warehouse  receipt,  iu  a  technical 
sense,  is  not  negotiable. —  The  customs  of  trade  and  business 
dealings  have  established  for  the  warehouse  receipt,  when 
properly  indorsed,  a  certain  kind  of  negotiability  which  by  the 
courts  has  been  termed  "  ^'wasz-negotiability,"  a  negotiability 
not  known  to  the  law  merchant  or  of  equal  rank  with  negotia- 
ble instruments,  but  rather  a  medium  of  securing  a  transfer  of 

1 6  Cal.  541. 
126 


en.  XI.]  LOCATIO   UUSTODI^.  [§  179, 

title  to  the  property  or  pledging  it  as  security.  It  is  used  by 
way  of  security  for  borrowed  money;  is  often  transferred  by 
indorsement;  is  apparently  sold  in  the  market  as  though  it  were 
a  negotiable  instrument;  but  it  cannot  be  said  that  it  is,  in  a 
technical  sense,  negotiable.  It  does  not  stand  for  the  amount 
of  money  that  it  represents  upon  its  face,  but  merely  stands 
in  place  of  the  property  it  represents,  and  the  delivery  of  it 
has  the  same  effect  as  the  delivery  of  the  property  itself.  The 
delivery  of  the  receipt  does  not  transfer  the  contract  so  as  to 
enable  the  assignee  or  indorsee  to  maintain  an  action  upon  it 
in  his  own  name  without  the  aid  of  a  statute  governing  such 
actions.  It  cannot  be  said  that  there  is  any  privity  of  contract 
between  a  warehouseman  and  the  assignee  of  the  warehouse 
receipt;  and  so  it  follows  that  the  assignee  of  the  warehouse 
receipt  occupies  no  better  position  in  relation  to  the  warehouse- 
man than  did  the  bailor  of  the  property,  for  it  has  been  fre- 
quently held  that  the  assignor  could  convey  no  greater  title  to 
the  property  than  he  himself  possessed.  It  is  therefore  not, 
in  a  technical  sense,  like  a  bill  of  exchange  or  a  negotiable  in- 
strument, but  is  more  in  the  nature  of  an  assignment  of  the 
rights  and  interests  of  the  bailor  in  the  property  represented 
by  the  warehouse  receipt. 

In  the  case  of  Burton  v.  Curyea^  the  court,  among  other 
things,  charged  the  jury  as  follows:  "The  warehouse  receipts 
are  not  negotiable  in  a  legal  sense  so  as  to  enable  the  person 
holding  them  to  transfer  a  greater  right  or  title  to  the  prop- 
erty mentioned  in  them  than  he  himself  had.  Their  only  office 
is  to  stand  in  the  place  of  the  property  itself,  so  far  as  the  ques- 
tions involved  in  this  case  are  concerned,  for  the  convenience 
of  the  parties  interested  in  the  property.  The  deliver}^  of  the 
receipt  has  the  same  effect  as  the  delivery  of  the  property;  no 
greater  and  no  less." 

It  is  urged  that  warehouse  receipts  should  be  treated  as  ne- 

•  40  111.  820;  Western  Union  R.  Co.  dent  had  authority  to  issue  such  re- 

V.  Wagner,  65  111.  197.     A  hoyia  fide  ceipt.     Corn  Ex.  Bank  v.  Am.  Dock 

holder  for  value  of  a  warehouse  re-  &  T,  Co.,  14  App.  Div.  4o3,  43  N.  Y. 

ceipt,  issued  to  himself  by  the  presi-  Supp.  1028.     The    indorsement  and 

dent  for  cotton,   may  recover  the  delivery  of  a  warehouse  receipt  of 

value  of  the  cotton  from  the  ware-  goods  stored  transfers  the  ownership 

house  company,  although  no  cotton  of  the   property   only,  and   not   the 

was  in  fact  deposited,  if  the  presi-  contract  itself. 

127 


§   IT!).]  ORDINARY    BAILMENTS.  [pART    I. 

gotiable  paper,  and  that  this  is  required  by  the  exigencies  of 
commerce.  Referring  to  this  position,  and  the  reasons  urged 
in  its  support,  we  can  only  say,  if  it  be  desirable  that  these  in- 
struments should  be  placed  upon  this  footing,  it  belongs  to  the 
legislature  to  make  the  rule.  Such  is  certainly  not  now  the 
law  as  it  has  been  expounded  by  the  highest  authorities  both 
of  England  and  of  this  country.  It  is  true  that  it  is  one  of  the 
excellencies  of  the  common  law  that  its  principles  can  be 
adapted  by  the  courts  to  new  emergencies  as  they  arise  in  the 
rapid  development  of  modern  society;  but  this  flexibility  of  the 
system  in  judicial  hands  should  be  confined  to  the  new  appli- 
cation of  settled  principles,  or  of  principles  in  harmony  with 
those  that  are  settled,  and  should  not  be  extended  to  the  making 
of  new  rules  that  are  merely  in  violation  of  maxims  lying  at 
the  foundation  of  our  laws  and  as  old  as  the  law  itself. 

This  question  was  thoroughly  discussed  in  the  case  of  Second 
National  Bank  v.  Walhridge}  That  case  was  a  peculiar  one. 
The  warehouseman,  on  the  application  of  the  owner,  by  a  mis- 
take issued  to  him  at  difl'erent  dates  two  warehouse  receipts 
for  the  same  property.  Afterward,  the  assignee  of  the  first 
receipt  recovered  the  property  in  replevin  from  the  plaintiff, 
who  held  the  second  receipt.  The  plaintiff  thereupon  instituted 
a  suit  to  recover  from  the  defendant,  the  warehouseman,  the 
value  of  the  property. 

The  supreme  court  held  that  the  assignee  of  the  receipt  occu- 
pied no  better  position  than  the  bailor  of  the  goods  Avould  have 
occupied  had  he  brought  the  action.  Counsel  for  the  plaintiff 
in  the  argument  urged  that  the  case  at  bar  was  identical  in 
principle  with  cases  where  a  teller  or  other  officer  of  a  bank 
certified  checks  to  be  good,  and,  thus  certified,  the  checks  had 
been  transferred  to  third  parties,  when  in  truth  the  drawer  had 
no  funds  in  the  bank;  and  also  cited  cases  embracing  the  prin- 
ciple involved,  where  a  note  is  given  which  would  be  void  in 
the  hands  of  the  holder,  but  in  the  hands  of  a  honajide  indorsee 
Avould  be  good;  so  that  in  this  case  the  negotiability  of  the 
warehouse  receipt  w^as  squarely  before  the  court.  The  court 
say:  "A  warehouse  receipt  given  by  a  warehouseman  for  prop- 
erty placed  in  his  possession  for  storage  is  not,  in  a  teclinical 
sense,  like  a  bill  of  excliange,  a  negotiable  instrument;  but  it 


1 19  Ohio  St.  419. 
128 


i 


CH.  XI.]  LOCATIO   CUSTODI^.  [§  179. 

merely  stands  in  place  of  the  property  it  represents;  and  the 
delivery  of  the  receipt  has  the  same  effect  in  transferring  the 
title  to  the  property  as  the  delivery  of  the  property."  And 
further  added:  "ISTor  is  there  any  force  in  the  claim  made  in 
the  argument,  that  the  receipt  in  this  case  was  negotiable  be- 
cause, by  its  terms,  the  property  was  declared  to  be  subject  to 
the  order  of  the  bailor,  .  .  .  and  such  was  the  fact  in  all 
of  the  cases  above  cited. 

"  This  case  is  clearly  distinguishable  from  the  cases  urged 
upon  our  attention,  where  negotiable  paper,  invalid  between 
the  original  parties,  has  been  enforced  in  favor  of  a  honajide 
holder  for  value ;  also,  from  the  cases  where  the  representation 
of  the  defendant  has  been  made  directly  to  the  plaintiff,  with 
the  view  of  influencing  his  conduct. 

"  In  the  former  class  of  cases,  the  negotiable  character  of  the 
paper  affords  the  holder  protection ;  in  the  latter  class,  when 
the  other  necessary  elements  are  found,  there  exists  good 
ground  for  the  application  of  the  doctrine  of  estoppel." 

It  seems,  therefore,  that  the  law  places  warehouse  receipts, 
when  indorsed  or  transferred  as  security  for  money  loaned  for 
other  obligations,  upon  precisely  the  same  footing  as  loans  made 
upon  pledge  and  delivery  of  the  property  itself.  If  the  person 
wiio  pledges  the  property  is  the  owner,  then  the  security  is 
good  to  the  extent  of  the  value  of  the  property  in  custody  of 
the  warehouseman  and  shown  by  the  receipt;  but  if  he  is  not 
the  owner,  if  he  is  simply  a  bailee,  or  if  the.  warehouse  re- 
ceipt had  been  issued  to  him  by  mistake,  or  if  the  property 
turns  out  to  be  a  different  kind  of  property  than  that  repre- 
sented in  the  receipt,  and  it  could  not  have  been  known  to  have 
been  thus  different  by  the  warehouseman  without  opening  up 
the  packages  and  examining  each  package,  or  if  the  property 
should  turn  out  to  be  stolen  property,  or  if  the  bailor  of  the 
property  should  not  be  the  owner,  but  simply  a  bailee,  and  was 
attempting  to  make  a  fraudulent  use  of  the  property  intrusted 
to  his  keeping,  in  such  like  cases  it  seems  to  be  settled  that 
a  person  purchasing  or  receiving  the  property  as  security 
will  receive  no  better  title  than  the  indorser  or  warehouse- 
man's bailor  had.  In  other  words,  the  property  will  be  sub- 
ordinated to  the  title  of  the  true  owner;  and  in  the  language 
9  129 


No.  1394. 

Marked 

,2 

^* 

3 

O 

<g> 

to 

^\  X 

<D 

\^ 

s 

^ 

1,500  Bbls. 

ft 

§  1Y9.]  OKDINAET    BAILMENTS.  [PART    I. 

of  the  court  in  Burton  v.  Curyea^  "these  are  risks  which 
men  enffao-ed  in  business  must  be  content  to  encounter,  and 
against  which  the  law  can  afford  them  no  protection.  The  law 
can  punish  roguery,  but  it  canaot  secure  innocent  persons 
against  losses  from  its  multiform  devices." 

In  the  case  of  Dean  v.  Di'iggs^  a  warehouseman  issued  two 
receipts  substantially  in  the  following  language: 

"  M.  S.  Driggs  &  Company's  Warehouse. 
"  Kew  Tork,  March  28,  1885. . 

"  Received  from  Max  Yon  Angern,  ex 
Grinaldo,  in  store  278-80  South  street,  to 
be  held  by  us  on  storage,  and  to  be  deliv- 
ered to  his  order  on  return  of  this  receipt 
and  payment  of  storage  and  charges,  fif- 
teen hundred  barrels  Portland  cement. 

"  Storage  per  month  4. 

"M.  S.  Driggs  &  Co." 
The  bailor  of  the  property,  having  obtained  the  receipts, 
took  them  to  the  plaintiffs  and  executed  a  note  for  $3,500,  and 
indorsed  the  warehouse  receipts,  and  authorized  the  plaintiffs 
to  deliver  the  note  and  the  guaranty  of  payment  indorsed 
upon  it  by  the  plaintiffs,  at  his  request,  together  with  the  ware- 
house receipts  as  collateral  security,  to  a  certain  bank  in  Xew 
York,  and  to  receive  the  proceeds  of  the  discount  of  such  note. 
The  plaintiffs  did  so,  and  delivered  the  money  to  the  bailor; 
the  note  not  being  paid  when  due,  the  plaintiffs  paid  it.  The 
bailor  having  absconded,  the  plaintiffs  went  to  the  warehouse 
of  the  defendants,  and  when  the  barrels  which  purported  to  be 
filled  with  Portland  cement  were  opened,  it  was  discovered 
that  they  did  not  contain  Portland  cement,  but  contained 
a  practically  worthless  material  somewhat  resembling  clay  or 
mortar. 

Upon  this  the  plaintiffs  commenced  a  suit  against  the  de- 
fendants, the  warehousemen,  claiming  that  they  were  liable 
for  the  cement  the  barrels  were  represented  to  contain ;  and  the 
question  then  arose  as  to  the  obligation  of  the  warehouseman 

140  111.  320;  Jones  on  Pledges,  Bryans  v.  Nix,  4  M.  &  W.  775 ;  Broad- 
sec.  281;  Davis  v.  Bradley,  28  Vt  118;     well  v.  Howard,  77  III  305. 

2  137  N.  Y.  274. 
130 


CH.  XI.]  LOCATIO    CUSTODI^.  [§  1Y9. 

to  examine  packages  that  are  left  with  him  for  safe  keeping. 
The  court  held  "  that  the  language  of  the  receipt  was  merely 
descriptive  of  the  barrels  which  the  defendant  received ;  that 
it  Avould  not  be  practicable  for  a  warehouseman  to  be  com- 
pelled to  open  and  examine  the  contents  of  every  package, 
barrel  or  box  of  merchandise  delivered  to  him  where  it  is  so 
packed  as  to  cover  and  conceal  the  real  nature  of  the  goods 
delivered;  "  and  adding,  "that  in  some  instances,  if  such  were 
the  law,  it  would  be  necessary  for  the  warehouseman  to  have 
expert  examiners  in  order  to  ascertain  the  kind  of  goods  con- 
tained in  such  packages;  "  the  court  using  this  language:  "It 
is  known  and  understood  that  the  business  of  a  warehouseman 
is  not  that  of  an  inspector  of  property  delivered  to  him,  nor  is 
he  an  inspector  of  the  contents  of  packages.  It  is  no  part  of 
the  duty  of  the  defendant,  as  a  warehouseman,  to  have  prop- 
erty inspected  or  its  quality  warranted,  and  no  proceedings 
are  supposed  to  take  place  to  enable  the  warehouseman  to  be- 
come acquainted  with  the  contents  of  packages,  for  the  very 
reason  that  in  his  business  it  is  unimportant  what  such  con- 
tents are." 

"  The  general  object  of  giving  a  description  of  the  property 
in  the  receipt  is  for  the  purpose  of  identification  only,  so  that 
the  identical  property  delivered  to  the  warehouseman  may  be 
delivered  back  by  him  upon  the  return  of  the  warehouse  re- 
ceipt, and  for  such  purpose  it  is  sufficient  to  describe  the  prop- 
erty as  it  by  its  external  appearance  seems  to  be.  Such  a 
description  is  not  calculated  to  mislead  anyone  in  regard  to  the 
actual  contents  of  the  package." 

The  rule  seems  to  be  that  a  bona  fide  holder  of  the  warehouse 
receipt  will  be  protected  to  this  extent,  as  to  all  representations 
of  fact  which  are  within  the  knowledge  of  the  warehouseman 
who  gives  the  receipt,  or  which  from  the  nature  of  the  goods, 
or  in  the  ordinary  course  of  business,  ought  to  have  been  within 
his  knowledge;  but  further  than  this  tlie  law  has  not  gone.^ 

At  most,  therefore,  it  can  only  be  said  that  a  warehouse  re- 
ceipt is  ^-wast-negotiable ;  not  negotiable  paper  under  the  law 
,     merchant.    The  contract  is  open  to  equities;  the  assignee  stand- 
I     ing  in  no  better  position  than  that  of  the  bailor  of  the  prop- 

1  First  Nat.  Bank  of  Chicago  v.  Dean,  137  N.  Y.  110. 
131 


179.] 


ORDINAKY   BAILMENTS. 


[PAET   I. 


erty.^  The  redelivery  of  the  property  stored  would  be  a  com- 
plete compliance  with  the  contract  expressed  in  the  receipt  of 
the  warehouseman,  except,  perhaps,  in  a  case  where,  because 
of  the  negligence  of  the  warehouseman,  a  receipt  for  valuable 
property  was  given,  where  inferior  and  worthless  commodities 
were  actually  received  and  stored,  and  the  receipt  had  for 
value  been  received  by  assignment  or  indorsement  by  a  hona 
Jide  holder;  and  this  not  because  the  receipt  is  negotiable  in 
the  sense  of  commercial  paper,  but  because  of  the  negligence 
of  the  warehouseman  in  holding  out  to  the  hona  fide  holder- 
that  the  valuable  goods  are  in  store,  and  for  this  reason  he  is 
estopped  from  denying  the  receipt  given. 

The  delivery  of  the  goods  to  be  stored  and  the  giving  of  the 
receipt  therefor,  reciting  that  they  are  to  be  redelivered  upon 
presenting  the  receipt  properly  indorsed,  or  upon  the  order 
of  the  owner  or  bailor,  creates  a  bailment.  The  very  essence 
of  the  contract  is  that  the  same  property  shall  be  returned ; 
so  any  contract  which  does  not  provide  for  a  return  of  the 
same  property  would  not  be  a  bailment  contract,  but  one  of 
sale  or  exchange.^  The  transfer  of  the  receipt  does  not  create 
any  new  rights,  and  has  no  other  operation  or  effect  than  as  a 
symbolical  delivery  of  the  property.^ 


1  Edwards  on  Bailments,  287;  Will- 
ard  V.  Bridge,  4  Barb.  361;  Suydam 
V.  Smith,  7  Hill,  182;  Thompson  v. 
Dominy,  14  M.  &  W.  403;  Blanchard 
V.  Page,  8  Gray,  281 ;  Bank  of  Roches- 
ter V.  Colt,  15  Barb.  506. 

2  Norton  v.  Woodruff,  2  N.  Y.  153. 

3  Hale  and  others  v.  Milwaukee 
Dock  Company,  29  Wis.  482,  was  a 
case  where  the  owner  pretended  to 
deliver  for  storage  barrels  of  mess 
pork,  and  obtained  a  receipt  from  the 
warehouse  company  for  ban-els  of 
mess  pork,  when  in  reality  the  bar- 
rels contained  only  salt.  The  re- 
ceipt in  due  course  of  business  gave 
to  the  plaintiff  a  security  for  a  loan. 
The  defendant  refused  to  deliver 
barrels  of  mess  pork  and  an  action 
was  brought.  The  court  says:  "The 
receipt  of  a  warehouseman  or  wharf- 
inger, and  the  receipt  or  bill  of  lad- 


ing of  a  common  carrier,  are  con- 
tracts of  precisely  the  same  general 
nature  and  effect,  and  should  obvi- 
ously be  governed  by  the  same  rules 
and  principles,  as  to  the  application 
of  the  doctrine  of  estoppel  or  nego- 
tiability, which,  with  respect  to  such 
contracts,  mean  one  and  the  same 
thing.    They  are  or  may  be  said  to 
be  negotiable  or  conclusive,  in  the 
hands  of  a  hona  fide  assignee    or , 
holder  for  value,  so  far  as  the  party 
executing  them,  warehouseman   or  \ 
carrier,  has  made,  or  is  bound  by,  the 
representations  contained  in  them. 
They  are  negotiable  or  conclusive; 
and  valid  in  the  hands  of  such  a] 
holder,  because  the  signer,  or  party] 
by  whom  they  are  executed,  is  es- 
topped, or  not  permitted  to  deny  thai 
existence  of  the  facts  represented  in 
or  by  them,  and  which  are  presumed  j 


133 


CH.  XI.] 


LOCATIO    CUSTODI^. 


[§§  ISO,  181. 


§  180.  Warehouseman  not  permitted  to  impeach  his  re- 
ceipt.—  While,  as  we  have  seen,  the  warehouseman  will  be 
permitted  to  show  in  certain  cases  that  the  property  received 
was  not  of  the  kind  represented  and  receipted  for,  in  cases 
where  it  can  be  said  that  the  custodian,  the  warehouseman, 
knew  or  ought  to  have  known  what  kind  of  property  he  did 
receive  for  storage,  he  will  not  be  heard  to  impeach  his  receipt. 
And  so  it  has  been  held  that  "  a  warehouseman  who  receives 
wheat  for  storage,  giving  receipts  therefor,  designating  and 
guaranteeing  the  grade  and  quantity  of  the  wheat,  becomes 
liable  for  damages  to  a  transferee  of  such  receipt  by  refusing  to 
deliver  the  wheat  called  for,  and  delivering  wheat  of  an  infe- 
rior quality."  ^ 

§  181.  Negotiability  of  receipt  provided  by  statute. —  In 
most  of  the  states  the  receipt,  so  far  as  possible,  is  made  nego- 
tiable by  statute;  these  statutes  providing  that  the  receipt 
may  be  transferred  by  indorsement  and  delivery,  and  that  the 


to  have  been  within  his  knowledge 
at  the  time  of  their  execution.  Ne- 
gotiability, or  g?/asJ-negotiability  as 
it  has  sometimes  been  more  properly 
called,  and  estoppel,  when  spoken 
of  with  respect  to  such  instruments, 
mean,  therefore,  one  and  the  same 
thing.  In  Rowley  v.  Bigelow,  13 
Pick.  307,  314,  and  Stanton  v.  Eager, 
16  id.  467,  474,  carriers'  receipts  or 
bills  of  lading  are  spoken  of  as  quasi- 
negotiable,  which  is  the  more  accu- 
rate form  of  expression.  A  bill  of 
lading  or  carrier's  receipt  for  goods 
to  be  transported,  and  the  receipt  of 
a  warehouseman  or  wharfinger  for 
goods  in  store  or  to  be  forwarded, 
are  both  contracts  of  bailment.  Both 
the  carrier  and  the  warehouseman 
are  bailees  for  hire,  the  former  agree- 
ing to  carry  and  deliver  the  identical 
goods  or  property  received  at  the 
place  designated  or  agreed  upon,  and 
the  latter  to  forward  or  redeliver  or 
return  the  verj^  same  goods  or  prop- 
erty on  presentation  of  the  receipt, 
unless  there  be  some  express  agree- 
ment, or  known  usage,  or  custom 
of  trade  or  business,  showing  that 


the  parties  otherwise  intended.  It  is 
of  the  very  essence  of  both  agree- 
ments that  the  very  same  property 
received  shall  be  carried,  delivered 
or  returned  to  the  party  who  may  be 
entitled  thereto,  in  discharge  of  the 
obligation  of  the  bailees.  The  deliv- 
ery or  return  of  the  same  property, 
and  of  no  other,  will  discharge  such 
obligation  or  duty  and  satisfy  the 
terms  of  the  contract.  Even  in  case 
of  fraud,  or  wilful  untruth,  or  mis- 
representation on  the  part  of  the 
bailee,  or,  in  a  case  like  the  present, 
where  he  is  himself  deceived  or  mis- 
led, without  fault  on  his  part,  by  the 
fraudulent  concealment  or  devices 
of  the  bailor,  no  other  or  correspond- 
ing property  or  goods  can  be  tendered 
in  performance  of  the  contract.  In 
the  former  case,  the  bailee  (and  in 
the  latter  also,  if  liable)  must  re- 
spond in  damages  for  the  value  of 
the  property  represented  by  the  re- 
ceipt, unless  the  party  entitled  to  the 
sanife  elects  to  receive  other  property 
instead." 

1  Lavvson  v.  Genessee  Farmer,  etc. 
Co.,  43  Pac.  191. 


133 


§  181.]  ORDINARY    BAILMENTS.  [PAET   I. 

indorsement  may  be  either  in  blank  or  to  the  order  of  another, 
and  shall  be  deemed  a  warranty  that  the  indorser  has  good 
title  and  lawful  authority  to  sell  the  property  named  in  such 
receipt,  and  generally  providing  that  the  transferee  of  the  prop- 
erty, by  negotiating  the  receipt,  shall  be  subject  to  the  lien 
of  the  warehouseman  for  charges  and  advances. 

These  statutes,  as  a  general  rule,  have  provisions  with  refer- 
ence to  the  issuing  of  receipts  by  the  warehouseman  as  security 
for  money  loaned,  and  usually  provide  that  the  warehouseman 
shall  not  issue  receipts  or  vouchers  for  personal  property  to  any 
person  or  corporation  as  security  for  money  loaned  or  for  other 
indebtedness,  unless  such  property  so  receipted  for  shall  be  at 
the  time  of  issuing  such  receipt  or  voucher  the  property  of  the 
warehouseman  without  incumbrance,  and  actually  in  store  and 
under  his  control  at  the  time.  The  negotiability  of  the  receipt, 
the  manner  of  issuing  it,  and  the  rights  and  privileges  of  the 
warehouseman  and  the  holder  of  the  receipt,  depend  very 
largely  upon  the  statutes  of  the  several  states.  It  will  there- 
fore be  necessary,  in  order  to  determine  fuWy  the  rights,  priv- 
ileges and  liabilities  of  the  warehouseman  in  the  different  states 
in  this  regard,  to  consult  the  several  statutes.^ 

1  Michigan  Com.  Laws,  78,  sec.  5037-  erty,  give  to  such  person  his  ware- 
39,  provide  that  "  warehouse  receipts  houseman's  non-negotiable  receipt; 
shall  be  negotiable  and  may  be  trans-  such  receipt  to  have  plainly  printed, 
ferred  by  indorsement  and  delivery  written  or  stamped  upon  it  '  non-ne- 
either  in  blank  or  to  the  order  of  an-  gotiable,'  and  that  the  assignment  of 
other,  except  where  the  words  '  non-  such  non-negotiable  receipt,  to  be 
negotiable '  are  plainly  written,  effectual,  must  be  recorded  on  the 
printed  or  stamped  on  the  face  books  of  the  warehouseman  who  is- 
thereof."  sues  it."  See  Amendment,  Supple- 
Massachusetts  Public  Statutes,  419,  ment  1882-88,  423. 
provide  "that  the  warehouseman  Illinois  Revised  Statutes,  98,  1270, 
shall  give  receipt  for  the  property  sec.  156,  provide  "that  the  receipt 
negotiable  in  form,  and  that  the  title  shall  be  transferable  by  indorse- 
to  the  property  stored  shall  pass  to  ment,  and  that  such  indorsement 
the  purchaser  or  pledgee  by  the  in-  shall  be  deemed  a  valid  transfer  of 
dorsement  and  delivery  to  him  of  tlie  the  property." 

•warehouse  receipt  therefor, signed  by  Indiana  Ann.  Stats.  1894,  sec.  8722, 
the  person  to  whom  such  receipt  was  provide  "  that  all  receipts  issued  by 
originally  given,  or  by  the  indorsee  any  warehouseman,  as  provided  in 
of  the  receipt;  provided  that  every  thisact.  shall  be  negotiable  and  trans- 
such  warehouseman  shall,  upon  re-  ferable  by  indorsement  in  blank,  or 
quest  of  any  person  depositing  prop-  by  special    indorsement    and  with 

134 


CH.  XI.]  LOCATIO    CUSTODIiE.  [§  182. 

It  may  be  said,  however,  that  even  under  the  several  stat- 
utes, negotiability  of  the  receipt  cannot  be  extended  beyond 
the  express  term  or  provision  of  the  statute;  that  is  to  say, 
these  statutes  making  warehouse  receipts  negotiable  are  such 
an  innovation  upon  the  law  governing  the  negotiability  of 
commercial  paper,  that  the  courts  would  give  to  the  statutes  a 
strict  construction,  and  their  negotiability  would  be  confined 
to  the  strict  provisions  of  the  statute. 

§  182.  Common  carriers,  when  warehousemen. —  It  is  often 
a  very  important  question  to  determine  whether  the  carrier's 
relation  is  that  of  a  common  carrier  or  a  warehouseman.  If 
the  relation  is  that  of  a  common  carrier,  then  his  liability  may  be 
that  of  an  insurer;  but  if  it  is  that  of  a  warehouseman,  then  he 
is  only  liable  for  ordinary  negligence  and  is  held  to  ordinary 
diligence. 

The  test  which  determines  whether  the  carrier's  relation  is 
that  of  a  warehouseman  or  a  common  carrier  seems  to  be 
whether  the  goods  have  been  delivered  by  the  shipper  for  the 
purpose  of  immediate  transportation  without  further  orders  or 
not.'  If  the  delivery  of  the  goods  is  not  for  immediate  ship- 
ment, but  by  order  of  the  owner,  and  the}^  are  to  be  detained 
for  some  purpose  and  the  shipment  to  be  some  time  in  the 
future,  in  such  case  the  relation  of  the  carrier  is  that  of  a  ware- 
houseman. The  general  rule  is  that,  if  something  remains  to 
be  done  after  the  goods  have  been  delivered  by  order  of  the 
shipper,  the  liability  of  the  carrier  is  that  of  warehouseman 
merely.'^     If  the  shipment  is  delayed,  however,  through  the 

like  liability  as  bills  of  exchange  ten,  printed  or  stamped  upon  the  re- 
new   are    and    with     like     remedy  ceipt. 

thereof."  There  are  other  provisions  California,  Connecticut, Iowa,  Kan- 
requiring  that  receipts  shall  only  sas,  Kentucky,  Maine,  Maryland, 
be  given  for  property  stored,  and  New  York,  Wisconsin  and  other 
forbidding  fraudulent  receipts;  also  states  have  enactments  upon  this 
providing    that   the  warehouseman  subject. 

shall  not  sell,  incumber,  ship,  trans-  i  Fitchburg   R    Co.  v.  Hanna,    6 

fer  or  move  beyond  his  immediate  Gray  (Mass.),  589;  Goodbar  v.  Wabash 

control    any   property  for   which  a  R.  Co.,  53  Mo.  App.  434;  Pittsburg  R. 

receipt  shall  be  given  without  the  Co.  v.  Barrett,  36  Ohio  St.  448;  Clark 

consent  of  the  holder  of  the  receipt,  v.  Needles,  25  Pa.  St.  338. 

Tennessee  Code,  1896,  sec.  3605,  en-  2  st.  Louis  R.  Co.  v.  Knight,  123 

acts  that  the  warehouse  receipt  shall  U.  S.  79 ;  Bannon  v.  Eldridge,  100  Mass. 

be  negotiable,  except  in  cases  where  457;  Watts  v.  Boston  R.  Co.,  106  Mass. 

the  words  "non-negotiable  "are  writ-  467.     Goods    left    in  the  company's 

135 


§  183.] 


OKDINAEY    BAILMENTS. 


[PAKT    I. 


carrier's  acts  and  not  by  the  request  or  action  of  the  shipper, 
in  such  case  the  relation  of  common  carrier  is  not  changed  to 
that  of  a  warehouseman,  nor  is  the  liability  changed.  When 
the  property  is  delivered  to  the  common  carrier  it  is  presumed 
to  be  for  immediate  shipment;  the  law  presumes  this,  and  it  is 
the  duty  of  the  carrier  to  at  once  ship  the  property;  and  if  he 
delays  the  shipment,  he  cannot  by  such  delay  change  his  lia- 
bility. 

In  Gregory  v.  Railway  Co}  it  was  held  that  a  delivery  to  a  car- 
rier implies  a  direction  for  immediate  shipment;  and  the  fact 
that  the  shipper  consents  that  the  goods  may  lie  in  the  depot 
until  the  carrier  can  secure  a  car  does  not  relieve  the  carrier 
from  liability  as  an  insurer. 

§  183.  As  to  goods  awaiting  delivery. —  As  to  when  the  re- 
lation of  warehouseman  takes  the  place  of  that  of  a  common 
carrier  as  to  goods  that  have  been  transported  to  their  desti- 
nation and  are  in  the  vehicles  or  warehouses  of  the  carrier 
awaiting  delivery  to  the  consignee,  the  authorities  are  not  en- 
tirely harmonious.  There  is  a  class  of  cases  which  holds  that 
when  the  carrier  has  transported  the  goods  in  compliance  with 
his  contract  of  affreightment  and  has  them  in  his  cars  ready  to 
be  unloaded,  if  the  goods  are  such  as  the  consignee  usually 
takes  from  the  cars,  or  in  the  freight  houses,  if  of  the  kind  of 


warehouse  for  future  transportation 
through  an  arrangement  with  the 
baggage-master  are  in  the  com- 
pany's charge  as  a  warehouseman 
only,  regardless  of  what  the  baggage- 
master  may  have  agreed,  since  he  had 
no  authority  to  bind  the  company. 
Mulligan  v.  Northern  Pacific  R.  Co., 
4  Dak.  315,  29  N.  W.  659,  27  Am. 
&  Eng.  R.  Cas.  33.  Where  a  ship- 
per stores  goods  from  time  to  time 
in  a  railway  warehouse,  loading  a 
car  when  a  carload  is  ready,  the  re- 
sponsibility of  the  railway  company 
in  respect  to  such  of  the  goods  as 
have  been  specifically  set  apart  for 
shipment  is  not  that  of  a  carrier  but 
of  a  warehouseman ;  and  in  case  of 
their  accidental  destruction  by  fire, 
the  shipper  has  no  remedy  against 
the  company.  Milloy  v.  Grand  Trunk 


R.  Co.,  21  Ont  App.  404.  55  Am.  & 
Eng.  R.  Cas.  579;  111.  Cent.  R  Co.  v. 
Ash  mead.  58  111.  487;  111.  Cent.  R.  Co. 
V.  McCIellan.  54  111.  58;  IlL  Cent.  R 
Co.  V.  Hornberger,  77  111.  457. 

146  Mo.  App.  474;  Gulf,  etc.  R  Co. 
V.  Trawick,  80  Tex.  270.  "  Where  a 
railroad  company  erects  a  platform 
for  the  purpose  of  sliipping  cotton, 
and  its  course  of  business  is  such 
that  it  induces  parties  to  store  cot- 
ton on  it  under  a  promise  to  ship 
such  cotton  by  the  next  freight  train, 
but  instead  of  doing  so  allows  the 
train  to  pass  without  taking  on  the 
cotton,  it  is  responsible  as  a  common 
carrier  for  the  cotton,  and  is  liable 
for  its  subsequent  loss  by  fire."  Meyer 
V.  Vicksburg,  etc.  R  Ca,  41  La.  Ann. 
639. 


136 


•CH.  XI.]  LOCATIO    CDSTODI^.  [§  184. 

goods  that  are  usually  unloaded  and  put  into  the  freight  house 
by  the  carrier,  the  carrier  has  done  his  whole  duty,  and  it  is 
the  duty  of  the  consignee  to  call  for  and  take  the  goods  away 
without  notice  from  the  company;  and,  that  during  the  time 
the  goods  are  held  at  their  destination  awaiting  delivery  to 
the  consignee,  the  carrier's  liability  as  such  does  not  attach, 
but  is  limited  to  that  of  a  warehouseman,  and  is  only  liable  as 
such.  That  is  to  say,  he  is  no  longer  an  insurer,  but  a  custodian 
of  the  property,  a  locatio  custodioe  bailee,  liable  for  ordinary 
negligence  and  bound  to  exercise  ordinary  diligence.  And  so, 
if  the  goods  while  so  held  are  destroyed,  or  injured,  or  lost, 
without  the  negligence  of  the  carrier  in  whose  possession  they 
are,  he  is  not  liable. 

This  rule  has  been  called  and  is  known  as  the  Massachusetts 
rule,  and  is  followed  by  the  courts  in  several  other  states.^ 

§184.  The  New  Hampshire  rule. —  Another  line  of 

cases  holds  to  what  has  been  called  the  New  Hampshire  rule, 
which  is  quite  like  the  Massachusetts  rule  except  that  it  holds 
the  carrier  to  the  full  carrier's  liability  for  a  reasonable  time 
after  the  arrival  of  the  goods  which  is  given  to  the  consignee 
to  call  for  them,  inspect  them,  and  take  them  away. 

1  Blaisdell  v.  Eailway  Co.,  145  Mass.  Co.,  112  Mass.  455;  Barron  v.  Eldridge, 

132.     In  Bassett  v.  Railway  Co.,  145  100  Mass.  455;  Rice  v.  Railway  Co., 

Mass.  129,  the  court  say:  "  The  plaint-  98  Mass.  212.     The  leading  case  upon 

iff  had  employed  the  defendant  as  a  this  doctrine  is  an  earlier  Massachu- 

common    carrier    to    transport    his  setts  cise,  Thomas  v.  Railway  Co.,  10 

goods  to  Chicopee.     He  voluntarily  Mete.  476,  where  the  court  discusses 

entered  into  an  arrangement  which  in  detail  the  rule  and  the  theory, 

involved  the  subject  of  the  defend-  Some  of  the  states  have  followed  the 

ant's  liability  for  loss  of  the  property  Massachusetts  rule: 

or  injury  to  it  from  any  cause,  and  Illinois, —  Gregg   v.   Railway  Co., 

which  determined  his  right  as  defi-  147  111.  550;  Porter  v.  Railway  Co.,  20 

nitely,  under  the  contract  implied  111.  107;  Railway  Co.  v.  Jenkins,  103 

by  law,  as  if  the  parties  had  written  111.  599;  Railway  Co.  v.  Friend,  64  111. 

out  and  signed  stipulations  in  detail.  303;  Railway  Co.  v.  Scott,  42  111.  133. 

The  defendant  was  bound  to  carry  Indiana. —  Cincinnati,  etc.  R.  Co. 

the  goods  and  was  an  insurer  of  them  v.  McCool,  26  Ind.  140. 

until  the  transit  ended,  and  was  then  Iowa. —  Mohr   v.  Eailway   Co.,  40 

liable,  as  a  warehouseman,  for  any  Iowa,  579. 

want  of  ordinary  care  during  such  This  rule  is  also  followed  in  Geor- 

reasonable  time  as  they  should  re-  gia,  Missouri,  North  Carolina,  Penn- 

main  in  its  custody  awaiting  the  call  sylvania  and  Tennessee.     See  cases 

of  the  assignee.   Tiiis  was  the  extent  cited  in  note,  x^ost,  ^  581. 
of  its  liability."     Lane  v.  Railway 

137 


§  185.]  ORDINARY    BAILMENTS.  [PABT   I, 

The  rule  does  not  require  that  notice  be  given  to  the  con- 
signee of  the  arrival,  but  seems  to  presume  that  he  knows 
when  the  freight  was  shipped  and  when,  in  due  course  of  trans- 
portation, it  ought  to  arrive,  and  then  allows  for  the  consignee 
reasonable  time  after  its  actual  arrival  to  take  it  from  the  car- 
rier's custody ;  if  it  is  left  beyond  that  reasonable  time,  the 
carrier,  as  to  the  goods,  becomes  a  warehouseman  and  only 
liable  as  such.^ 

§  185.  The  tliird  class  of  cases. —  A  third  class  of 

cases  holds  to  still  a  different  rule,  and,  as  it  seems  to  us,  the 
best  reasoned  rule  and  having  the  weight  of  authority.  These 
cases  hold  the  correct  rule  to  be  that,  upon  the  arrival  of  the 
goods  at  their  destination,  it  is  the  duty  of  the  carrier  to  give 
to  the  consignee  reasonable  notice  that  the  goods  have  arrived 
and  to  call  at  the  company's  warehouse  and  receive  them  and 
pay  the  freight,  and  until  such  notice  has  been  given  and  a 
reasonable  time  has  expired  after  the  giving  of  such  notice  to 
receive  the  goods,  the  carrier  will  be  held  to  the  extraordinary 
liability  of  a  carrier,  and  not  until  after  the  time  of  such  rea- 
sonable notice  has  expired  will  his  liability  be  limited  to  that 
of  a  warehouseman.  This  has  sometimes  been  called  the  New 
York  rule.  There  is  no  reason  wh}''  it  should  be  so  called, 
as  this  state  did  not  lead  in  the  establishment  of  the  doctrine,^ 
although  it  has  steadily  held  to  it  with  other  states.  This  is 
also  the  rule  in  England.^ 

This  question  will  be  further  discussed  in  our  consideration 
of  the  duties  and  liabilities  of  common  carriers,  to  which  it 
perhaps  more  properly  belongs;  our  object  here  being  simply 
to  point  out  the  creation  of  the  locatio  custodice  bailments  a& 
related  to  warehousemen. 

1  McDowell  V.  Railway  Co.,  34  N.  Y.  Minnesota:  Kirk  v.  Railway  Co., 

947.    See  also   Angell  on    Carriers,  39  Minn.    161.     Following  this    are 

sec.  313,  and  a  long  list  of  cases  col-  also  Nebraska,  Ohio  and  Texas, 

lected  and  cited  from  New  York  and  2  perhaps  the  first  case  that  took 

other  states,  5  Am.  &  Eng.  Encyl.  of  issue  with  the  Massachusetts   rule 

Law  (2d  ed.),  266.  was  the  case  of  Moses  v.  Railway 

Michigan:    McMillan    v.   Railway  Co.,   33  N.   H.   523.    The    following 


Co.,  16  Mich.  79,  93  Am.  Dec.  208 
Buckley  v.  Railway  Co.,  18  Mich.  121 
Feige  v.  Railway  Co.,  62  Mich.  1 
Black  V.  Ashley,  80  Mich.  90.  isiana  and  Kansas. 

138 


states  may  be  said  to  have  adopted 
this  rule:  Alabama.  Vermont,  Wis- 
consin, Kentucky,  New  Jersey,  Lou- 


OH.  XI.]  LOCATIO   CUSTODIiE.  [§§  186-188. 

§  186.  Wharfingers. —  A  Avharfinger  is  one  who  maintains  a 
wharf  for  the  receiving  of  goods  for  hire ;  his  duties  and  lia- 
bilities are  not  unlike  that  of  a  warehouseman.  Like  the  ware- 
houseman he  is  liable  for  all  losses  which  happen  through  his 
neglect  to  exercise  ordinary  diligence.^ 

§  187.  When  liability  begins. —  The  wharfinger  cannot  be 
charged  with  any  responsibility  until  the  goods  are  delivered 
into  his  possession  and  he  has  the  control  of  them.  It  therefore 
follows  that  in  order  to  hold  the  wharfinger  for  loss  or  injury 
to  the  property  it  must  appear  that  he  had  control  of  it.  And 
in  Blinn  v.  Mayo  the  court  held:  "That  a  mere  delivery  of 
the  goods  at  the  wharf  is  not  necessarily  a  delivery  to  the 
owners  as  wharfingers.  The  usages  of  business  in  the  vicinity 
are  of  importance  to  show  when  a  wharfinger  acquires  and 
when  he  ceases  to  have  the  custody  of  the  goods  in  that  capac- 
ity as  in  the  case  of  common  carriers."  ^ 

.  In  some  localities  the  usage  of  business  requires  that  the 
wharfinger  should  be  notified  when  the  goods  are  delivered  to 
him  or  upon  his  wharf,  and  it  may  be  said  that  it  is  generally 
held  by  the  courts  that  the  wharfinger's  liability  does  not  begin 
until  the  goods  are  so  delivered  and  he  has  notice  of  such  de- 
livery.* 

§  188.  When  the  liability  ends. —  The  wharfinger  often 
stands  between  the  shipper  and  the  common  carrier,  or  between 
two  connecting  carriers.  The  property  is  delivered  upon  his 
wharf  for  the  purpose  of  shipment  by  boat,  or  to  be  delivered 
to  some  connecting  carrier;  and  hence  it  often  becomes  very 

1  Cox  V.  O'Reilly, 4  Ind. 368.  "Wharf-  2  Blinn  v.  Mayo,  10  Vt.  56. 
ingers  are  not  like  common  carriers  3  Packer  v.  Getman,  6Cowen  {N.  Y.), 
answerable  for  all  goods  that  may  be  757,  was  an  action  of  trover  to  re- 
intrusted  to  them  in  their  line  of  cover  the  value  of  a  box  of  dry  goods 
business,  except  such  as  may  be  lost  alleged  to  have  been  delivered  to  the 
by  the  act  of  God  or  the  public  enemy,  defendant  as  master  of  a  canal  boat, 
They  are  responsible  for  loss  only  to  be  transported  from  Albany  to 
which  happens  through  a  neglect  to  Charlestown.  The  court  say:  "Ad- 
exercise  reasonable  and  ordinary  care  mitting  that,  according  to  the  usual 
and  diligence.  They  are  in  the  same  custom  and  understanding  of  parties, 
category  in  this  particular  with  ware-  a  delivery  on  the  dock  near  a  boat  is 
housemen."  Schmidt  v.  Blood,  9  a  good  delivery  so  as  to  charge  the 
Wend.  (N.  Y.)  268,  24  Am.  Dec.  143;  carrier,  it  must  always  be  accompa- 
Blinn  v.  Mayo,  10  Vt.  56,  33  Am.  Dec.  nied  with  express  notice,  otherwise 
175.  he  is  not  answerable." 

139 


§  189,]  ORDINARY    BAILMENTS.  [PART  I. 

important  to  determine  not  only  when  his  liability  begins 
but  when  it  ends.  Property,  too,  is  often  delivered  upon  the 
wharf  of  the  wharfinger  to  be  by  him  delivered  to  the  ware- 
houseman. The  general  rule  is  that  the  liability  of  the  wharf- 
inger ends  when  he  ceases  to  have  control  of  the  property; 
when  he  has  delivered  it  either  to  the  shipper,  the  warehouse- 
man, the  railroad  company  or  to  the  consignee.^ 

It  is  true  that  usage  and  the  general  course  of  business  has 
much  to  do  with  determining  what  is  actually  necessary  in  de- 
livering the  property.  As,  for  example,  a  long-continued  course 
of  business  or  usage  in  accepting  property  that  is  delivered 
vupon  the  wharf  in  a  certain  place,  or  placed  in  the  charge  of 
certain  individuals,  or  servants  of  the  wharfingers,  or  the  de- 
livery of  goods  in  accordance  with  a  long-continued  usage,  as 
.the  delivery  of  property  to  the  oflQcers  of  the  ship,  may  have 
very  much  to  do  with  determining  whether  or  not  there  has 
been  a  proper  delivery.  And  so  in  the  case  cited  {Cobhan  v. 
Downe)  Lord  Ellenborough  said:  "The  defendant  has  proved 
that  by  established  usage  the  goods  are  delivered  by  the  wharf- 
inger to  the  mate  and  crew  of  the  vessel  which  is  to  carry 
them;  from  which  time  it  has  been  considered  that  their  re- 
sponsibility is  then  at  an  end." 

§  189.  Factors  or  commission  merchants. —  Factors  or 
commission  merchants  belong  to  this  class  of  bailees.  They 
have  custody  of  the  property  they  are  authorized  to  sell; 
they  are  employed  as  agents  of  the  owners  to  sell  goods  or 
merchandise  consigned  or  delivered  to  them  by  or  for  their 
principals,  and  for  a  compensation  called  factorage  or  commis- 
sion. 

While  the  goods  or  property  remains  in  their  hands,  they 
have  the  custody  or  control  of  it,  and  from  the  time  they  re- 
ceive and  take  possession  of  the  property  they  are  liable  as 
custody  bailees;  and  they  are  held  to  the  same  degree  of  dili- 
gence, to  wit,  ordinary  diligence,  and  are  liable  for  ordinary 

iln  Cobban  v.  Downe,  5  Esp.  41,  accredited  on  board  the  ship;  it  can- 
Lord  Ellenborough  says:  "Undoubt-  not  be  delivered  to  the  crew  at  ran- 
edly  \vhere  the  responsibility  of  the  dom;  but  the  mate  is  such  a  recog- 
ship  begins,  that  of  the  wharfinger  nized  officer  on  board  the  ship  that 
ends:  and  a  delivery  to  the  ship  delivery  to  him  would  be  a  good  de- 
creates  a  liability  there;  but  the  de-  livery." 
livery  must  be  to  an  officer  or  person 

140 


CH,  XI.]  LOCATIO    CUSTODIiB.  [§  190. 

negligence.     Their  liability,  however,  will  be  more  particu- 
larly discussed  when  we  reach  that  subject. 

The  factor,  or  commission  merchant,  must  exercise  good 
faith  in  caring  for  the  property  and  in  performance  of  his  duty 
to  his  bailor.  He  can  sell  the  property,  but  has  no  authority 
to  pawn,  pledge  or  mortgage  it,  and  like  other  bailees  of  this- 
class  he  must  act  according  to  the  general  usage  of  trade.  In 
holding  himself  out  as  a  factor  or  commission  merchant  to  the 
public,  he  guarantees  that  he  possesses  the  skill,  judgment  and 
ability  that  is  possessed  by  the  ordinary  factors  and  commis- 
sion merchants  in  his  vicinity.  It  therefore  follows  that  he- 
must  be  held  to  exercise  that  skill,  judgment  and  knowledge 
that  is  possessed  by  the  ordinary  bailee;  it  is  not  enough  that 
he  has  exercised  good  faith.^ 

The  factor  cannot  substitute  for  the  goods  consigned  to  him 
other  goods  of  the  same  kind.  If  this  were  allowed  it  would 
give  to  the  factor  the  right  of  converting  the  property  of  the 
consignor  to  his  own  use,  and  instead  of  being  a  bailee  of  the 
property  he  could  assume  the  character  of  debtor  to  the  owner 
of  the  property  without  his  consent.-  His  duty  is  to  receive 
the  goods  from  the  consignor  and  follow  implicitly  the  direc- 
tions and  instructions  given  him  with  reference  to  them;  or  if 
there  are  no  such  explicit  instructions  or  directions,  then  he 
must  take  due  care  of  the  property  while  in  his  possession  and 
dispose  of  it,  following  the  general  usages  of  the  trade. 

§  100.  Storage-house  keepers. —  Storage-houses,  so  called, 
are  store-rooms  kept  by  persons  or  companies  for  the  storage 
of  goods,  w^ares  and  merchandise,  and  caring  for  the  same  for 
hire,  to  be  redelivered  in  the  same  condition  as  when  received. 
This  term  only  applies  where  the  safe  custody  and  return  of 
the  goods  are  the  principal  objects  of  the  deposit,  and  not 
where  it  is  merely  incidental,  and  the  keeping  is  as  well  for  the 
purpose  of  consumption  or  for  speculation. 

These  storage-houses  are  carried  on  by  private  owners,  and 
often  by  large  storage  companies,  whose  business  is  principally 
the  caring  for  furniture,  household  goods,  and  other  articles 
and  chattels  which  are  expected  to  be  returned  to  the  owner 
upon  demand  and  payment  of  charges. 

1  Story    on     Bailments,    sec.    395;        ^Seymour  v.    Wyckoff,    10    N.  Y. 
Weaver  v.  Poyer,  70  111.  5G7;  Dunbar    213. 
V.  Gregg,  44  111.  Ajjp.  527. 

141 


§§  191,  192.]  ORDINARY    BAILMENTS.  [PART  I, 

In  connection  with  the  business,  and  as  incident  to  it,  the 
storage  companies,-  or  storage-house  man,  generally  carries  on 
the  business  of  moving  the  goods  to  and  from  the  place  of 
storage,  and  for  that  purpose  runs  moving-vans,  trucks  and 
drays,  employing  his  own  force  of  men  for  handling  the  prop- 
erty. 

This  business  in  most  respects  is  similar  to  that  of  the  ware- 
houseman, but  has  grown  to  such  proportions  that  mention  of 
it  as  a  business  by  itself  seems  proper.^ 

§  191.  Some  of  the  duties  of  the  bailor. —  The  bailor,  or 
owner  of  the  goods  to  be  stored,  may  be  said  to  be  under  ob- 
ligation to  exercise  good  faith  toward  the  bailee,  the  storage- 
keeper,  in  respect  to  this  bailment.  Among  other  things,  he 
would  be  bound  to  give  to  the  bailee  full  knowledge  of  the 
kind  of  goods  put  into  his  store-house  in  order  to  bind  the 
keeper  to  the  ordinary  liability  that  attaches.  If  the  goods  or 
property  were  very  valuable,  as  jewels  or  diamonds,  and  were 
secreted  or  hidden  away  among  the  other  goods,  and  the 
knowledge  of  them  kept  from  the  bailee,  the  bailor  could  not 
hold  the  custodian  to  the  same  degree  of  liability,  if  the  goods 
were  lost  or  destroyed,  that  he  might  if  the  attention  of  the 
bailee  had  been  called  to  these  valuable  articles. 

§  192.  Dangerous   articles. —  It  is   the   duty   of  the 

bailor  not  to  deliver  to  the  bailee  for  storage  any  dangerous 
thing,  or  that  which  might  result  in  danger  or  injury  to  the 
property,  person  or  business  of  the  storage-house  keeper,  or  to 
the  property  of  others  whose  effects  are  being  stored,  without 

1  Jones  V.  Morgan,  90  N.  Y.  4  "  De-  ally  as  paid  for  storage.  Most  of 
fendant  owned  a  building  in  the  the  property  was  stolen  by  those  in 
city  of  New  York,  used  and  occupied  charge  of  the  building.  In  an  ac- 
as  a  storehouse.  Under  an  agree-  tion  to  recover  damages  the  court 
ment  with  plaintiff,  who  desired  to  charged,  in  substance,  that  the  con- 
store  for  safe-keeping  certain  house-  tract  was  one  of  bailment;  that  de- 
hold  furniture,  a  space  was  allotted  fendant,  if  liable  at  all,  was  liable  as 
to  her  in  said  building,  and  defend-  a  warehouseman,  and  bound  to  ex- 
ant  assured  her  that  her  goods  would  ercise  ordinary  care  and  prudence, 
be  safe,  and  would  be  guarded  day  Held,  no  error.  It  seems  immaterial 
and  night.  The  allotted  space  was  whether  the  contract  was  one  of 
inclosed  by  wooden  partitions  with  bailment  or  of  hiring  the  allotted 
a  door,  upon  which  were  two  locks,  room,  as  in  either  case  defendant 
the  key  of  one  of  which  was  kept  by  was  bound  to  exercise  ordinary  care  ^ 
plaintiff.  When  money  was  paid  by  and  prudence  in  guarding  the  goods."] 
plaintiff  it  was  receipted  for,  gener- 

143 


<3H.  XI.]  LOCATIO    CUSTODI^.  [§§  193-195. 

first  giving  to  the  keeper  full  knowledge  of  the  character  of 
the  property,  and  notice  of  the  danger  in  handling  or  keeping 
it;  and  if  the  bailee  should  suffer  any  injury  because  of  the 
failure  of  the  bailor  to  thus  do  his  duty,  the  bailor  would  be 
liable.  As,  for  example,  if  the  property  was  very  explosive,  or 
if  explosives  were  among  the  goods  and  chattels,  or  if  the 
goods  were  infected  with  contagious  diseases,  it  would  be  the 
duty  of  the  bailor  to  fully  apprise  the  bailee  of  the  facts. 

§  193.  When  the  liability  of  the  storage-house  keeper  be- 
gins.—  Following  the  rule  already  laid  down,  it  may  be  said 
that  this  liability  commences  at  once  upon  his  obtaining  con- 
trol of  the  property,  and  very  much  would  depend  upon  the 
usage  and  manner  of  doing  the  business.  If  the  propert}^  was 
taken  possession  of  at  the  house  or  premises  of  the  owner  and 
loaded  upon  the  truck  or  moving  van  of  the  storage-house 
keeper,  the  liability  would  commence  at  that  time;  for  the 
control  and  possession  of  the  property  would  be  then  in  the 
storage-house  keeper.^ 

§  194,  When  the  liability  ends. —  It  is  the  duty  of  the 
storage-house  keeper  to  deliver  the  goods  to  the  bailor,  or  to 
his  order  upon  demand,  and  payment  of  charges  and  the  lia- 
bility does  not  end  until  the  goods  are  so  delivered. 

§  195.  Storage-house  keeper  and  warehouseman  the  same. 
The  warehouseman  includes  the  storage-house  keeper,  the  lat- 
ter carrying  on  a  species  of  the  business  of  the  warehouseman, 
and  by  making  separate  mention  of  it  here  we  do  not  intend 
to  infer  that  a  distinction  exists,  to  be  pointed  out,  but  that 
this  particular  branch  may  receive  special  notice.      In  the 

i"It  is  held  that  the  liability  of  the  injury  the  goods  were  destroyed 

the  warehouseman  commences    as  without    his    fault,  and    that    thej'' 

soon  as  the  goods  arrive    and  the  must  have  been  so  destroyed  even  if 

crane  of  the  warehouseman  is  ap-  no  damage  had  previously  occurred, 

plied  to  raise  them  into  the  ware-  Powers  v.  Mitchell,  3  Hill,  545.     So, 

house.     Thomas  v.  Day, -4  Esp.  203;  if  through  the  negligence  of  the  serv- 

Merritt  v.  Old   Colony,  etc.   R.  Co.,  ant  of  the  warehouseman,  the  goods 

11  Allen,  80,  83.      See  Shepherd  v.  are  not  delivered  to  the  consignee 

Bristol,  etc.  R.  Co.,  L.  R.  3    Exch.  when  called  for  by  him,  and  they  are 

189;  Smitli   v.  Nashua,   etc.  R.  Co.,  destroyed  by  an  accidental  fire,  the 

7  Fost.  (N.  H.)  91.      And  he  is  liable  warehouseman  will  be  held  responsi- 

for  negligent  injury   to  the  goods  ble  for  their  loss.     Stevens  v.  Boston 

while  in  his  possession,  although  it  &  Maine  R.  Co.,  1  Gray,  377," 
appears  that  after  the  happening  of 

143 


§§  196-198.]  OEDINAKY    BAILMENTS.  [PAET    I, 

further  discussion  of  the  subject  we  need  not  separate  the  two, 
but  will  discuss  both  under  the  head  of  warehousemen. 

§  196.  Safe-deposit  and  trust  companies. —  Avery  exten- 
sive and  important  business  has  grown  up,  in  these  later  years 
more  generally,  among  banking  and  trust  companies,  of  setting 
aside  a  place  in  their  vaults,  built  and  arranged  for  the  use  of 
their  customers,  for  a  stipulated  hire,  in  which  the  customers 
may  have  control  of  a  drawer  or  box  in  which  they  may  de- 
posit their  papers,  deeds  or  money  as  they  desire,  the  customer 
having  the  key  to  his  individual  box  or  drawer,  and  privileges 
of  the  room  to  examine  his  papers  and  valuables;  and  in  order 
to  carry  on  the  business  necessarily  incident  to  the  special  de- 
posits, the  vaults  are  in  the  charge  and  custody  of  the  pro- 
prietors, their  servants  or  agents. 

§  197.  These  deposits  not  gratuitous;  differ  from  a  mere 
depositum. —  The  deposit  of  valuables  in  suchlike  places,  it 
would  seem,  is  generally,  at  least,  a  bailment  for  hire,  and 
without  question,  where  there  is  a  fixed  recompense,  either  by 
way  of  rental  for  the  drawer  used  by  the  depositor  or  the  use 
of  the  box,  by  an  annual  or  quarterly  amount  to  be  paid  or 
otherwise,  it  is  a  hiring  of  custody,  and  there  is  no  very  great 
difficulty  in  arriving  at  the  degree  of  diligence  that  is  required 
of  the  custodian,  or  bailee,  in  such  cases;  and  where  the  de- 
posit is  one  that  is  furnished  by  banks  to  their  customers  with- 
out any  direct  charge  to  the  customer  for  the  services  rendered 
by  way  of  taking  care  of  the  special  deposit,  it -would  no  doubt 
be  held  to  be  a  benefit  bailment  and  not  gratuitous,  the  service 
being  performed  because  the  depositor  is  a  customer  of  the 
bank,  and  by  reason  of  which  he  is  contributing  a  benefit  to 
the  bank.  If  the  depositor  was  not  a  customer  and  no  charges 
were  made  for  receiving  and  caring  for  the  special  deposit, 
it  would  be,  of  course,  a  mere  gratuitous  bailment;  the  dili- 
gence required  will,  as  we  have  seen,  depend  upon  the  kind  of 
bailment  created. 

§  198.  The  nature  of  the  bailment  and  the  diligence 

required. — A  gratuitous  bailment,  it  will  be  remembered,  could 
not  be  created  by  making  a  special  deposit  with  the  bank  or  the 
safe-deposit  company,  if  it  were  not  received,  held  and  cared 
for  by  the  depositary  for  the  sole  benefit  of  the  bailor;  for,  if 
the  least  benefit,  either  directly  or  indirectly,  is  realized  by  the 

144 


CII.  XI.1  LOCATIO    CUSTODI.E.  [§   198, 

bink  or  deposit  company,  it  would  be  a  benefit  bailment  and 
the  depositary  would  be  bound  to  exercise  the  ordinary  care 
required  of  a  benefi't  bailee  and  subject  to  the  same  liability; 
and  so  it  would  be  difficult  to  conceive  of  a  case,  as  business  is 
ordinarily  carried  on,  where  a  gratuitous  bailment  would  be 
created  if  the  deposit  were  made  by  a  customer  in  the  course 
of  his  business  with  the  concern;  for  it  would  be  held  that  there 
was  at  least  that  benefit  arising  from  the  business  of  the  bailor 
that  would  be  of  some  benefit  to  the  bailee. 

But  even  if  the  deposit  were  received  from  a  depositor  not  a 
customer,  and  without  reward,  if  it  were  entirely  gratuitous, 
the  degree  of  diligence  required  would  be  greater  than  that 
required,  of  the  ordinary  gratuitous  bailee.  Slight  diligence 
from  such  bailee  would  seem  to  approach  at  least  very  nearly 
to  ordinary  diligence  because  of  the  particular  circumstances. 
The  bailee  in  such  a  case  is  holding  out  to  the  public  a  greater 
security  for  the  property  and  effects  deposited  with  him  than 
the  ordinary  bailee. 

The  burglar-proof  safes  and  vaults,  the  corps  of  faithful, 
watchful  officers,  clerks  and  servants,  the  very  methodical  habits 
and  the  manner  of  looking  after  the  business  and  affairs  of  the 
place,  all  tend  to  place  these  institutions  on  a  higher  plane  than 
other  and  ordinary  places  of  caring  for  goods  and  property ; 
and  so  the  courts  have  construed  the  slight  diligence  required 
to  be  of  a  character  approaching  very  nearly,  if  not  entirely,  to 
what  is  generally  termed  and  held  to  be  ordinary  diligence. 

AVhere  persons  engaged  in  business  as  bankers  received  for 
safe  keeping  a  parcel  containing  bonds,  Avhich  was  put  in 
their  vault  as  a  special  deposit,  and  were  notified  that  their 
assistant  cashier,  who  had  access  to  the  vault  where  the 
bonds  were  deposited,  and  who  was  a  person  of  scant  means, 
was  engaged  in  speculating  in  stocks,  and  made  no  examina- 
tion as  to  the  goods  deposited  with  them  and  did  not  remove 
the  cashier,  who  afterwards  stole  the  bonds  so  deposited,  it  was 
held  that  the  bankers  were  guilty  of  gross  negligence.  The 
reasoning  of  the  court  in  the  opinion,  however,  would  seera 
to  place  the  duty  of  bankers  upon  a  higher  plane  than  what 
is  generally  known  as  slight  diligence.  The  court  say:  "Un- 
doubtedly if  the  bonds  were  received  by  the  defendants  for 
safe  keeping,  without  compensation  in  any  form,  but  exclu- 
lu  145 


§  lOS.]  ORDINARY    BAILMENTS.  [PAET  I. 

sively  for  the  benefit  of  the  bailees,  the  only  obligation  resting 
upon  them  was  to  exercise  over  the  bonds  such  reasonable  care 
as  men  of  cominon  jprudence  would  usually  hestow  for  the  protec- 
tion of  their  own  property  of  a  similar  character.  Ko  one  taking 
upon  himself  a  duty  for  another  without  consideration  is  bound 
in  law  or  morals  to  do  more  than  a  man  of  his  character  would 
do  generally  for  himself  under  like  conditions.  The  exercise 
of  reasonable  care  is  in  all  cases  a  dictate  of  good  faith.  An 
utter  disregard  of  the  property  of  the  bailor  would  be  an  act 
of  bad  faith  to  him;  but  what  will  constitute  such  reasonable 
care  will  vary  with  the  nature,  value  and  situation  of  the  prop- 
erty, the  general  protection  afforded  by  the  police  of  the  com- 
munity against  violence  and  crime,  and  the  bearing  of  sur- 
rounding circumstances  upon  its  security.  ^  .  .  But  gross 
neg'ligence  in  such  cases  is  nothing  more  than  a  failure  to  be- 
stow  the  care  which  the  property  in  its  situation  demands;  the 
omission  of  the  reasonable  care  required  is  the  negligence 
which  creates  the  liability,  and  Avhether  or  not  this  existed  is 
a  question  of  fact  for  the  jury  to  determine,  or  by  the  court 
where  a  jury  is  waived.^     .     .    , 

"  The  reasonable  care  which  persons  should  take  of  property 
intrusted  to  them  for  safe  keeping  without  reward  will  neces- 
sarily vary  with  its  nature,  value  and  situation,  and  the  bear- 
ing of  surrounding  circumstances  upon  its  security." 

The  business  of  the  bailee  will  necessarily  have  some  effect 
upon  the  nature  of  the  care  required  of  him;  as,  for  example, 
in  the  case  of  bankers  and  banking  institutions  having  spe- 
cial arrangements  by  vaults  and  other  guards  to  protect  prop- 
erty in  their  custody.     Persons,  therefore,  depositing  valuable 
articles  with  them  expect  that  such  measures  will  be  taken  as 
will  ordinarily  secure  the  property  from  burglars  outside  and] 
from  thieves  within,  and  that  whenever  ground  for  suspicion 
arises  an  examination  shall  be  made  by  them  to  ascertain  that  it! 
has  not  been  abstracted  or  tampered  with ;  and  also  that  they  willj 
employ  men  fit  both  in  ability  and  integrity  for  the  discharge! 
of  their  duties,  and  remove  those  employed  whenever  found] 

1  Steamboat  New  World  v.  King,  U.  S.  489,  494;  Smith  v.  First  Nat. 
16  How.  269,  474,  475;  Railroad  Co.  Bank  in  Westfield,  99  Mass.  605,  611;1 
V.  Lockwood.  17  Wall.  357,  388;  Mil-  Scott  v.  National  Bank  of  Chesterj 
waukee  &  St.  Paul  R.  Co.  v.  Arms,  91     Valley,  72  Pa.  St.  471,  480. 

146 


CU.  XI.]  LOCATIO    CUSTODI.E.  [§   198. 

wanting  in  either  of  these  particulars.  An  omission  of  such 
measures  would  in  most  cases  be  deemed  culpable  negligence, 
so  gross  as  to  amount  to  a  breach  of  good. faith  and  constitute 
a  fraud  upon  the  depositor. 

The  holdings  of  the  courts  are  quite  diverse  as  to  the  care  re- 
quired. There  seem  to  be  two  classes  of  holdings  upon  this 
subject,  the  measure  of  care  required  varying,  according  to 
these  decisions,  from  that  kind  of  care  or  custody  bestowed  by 
the  most  inattentive  men  upon  their  own  property,  to  that 
which  is  exercised  by  prudent  men  under  like  circumstances. 

The  Pennsylvania  court,  in  First  Nat.  Bank  v.  Graham^ 
announced  the  doctrine  that  a  bank  in  such  case  is  liable  only 
for  the  measure  of  care  which  the  most  inattentive  and  thought- 
less men  take  of  their  own  concerns;  and  the  Georgia  court, 
in  Merchants'  Nat.  Bank  v.  Guilmartin^^  held  "  that  in  case  of 
special  deposit  slight  care  is  sufficient; "  and  the  Massachusetts 
court  has  held  "  that  in  order  to  hold  the  bank  liable  it  was 
necessary  in  some  respects  to  prove  that  the  bank  was  guilty 
of  gross  carelessness  which  affected  the  safe  custody  of  the  de- 
posit, or  which  was  the  occasion  of  the  loss."  ^  The  language 
of  the  court  in  the  case  cited  is  as  follows:  "This  was  a  gratu- 
itous bailment;  the  defendants  are  liable  only  for  want  of  ordi- 
nary care."  In  the  other  class  of  cases  the  courts  have  stated 
the  care  required  in  stronger  terms,  and  have  held  the  rule  to 
be  that  the  bailee  is  required  to  exercise  the  care  and  prudence 
of  an  ordinarily  prudent  man. 

In  the  case  of  First  Nat.  Bank  v.  Ocean  Nat.  Bank  *  the 
court  say  that  "the  term  *  gross  negligence'  in  this  class  of 
cases  has  been  defined  in  various  ways.  The  term  itself  has 
been  quarreled  with,  but  it  still  has  a  place  in  law,  and  must 
have  so  long  as  the  measure  of  liability  implied  by  the  term  is 
recognized,  and  until  some  better  term  can  be  invented  to  give 
expression  to  it.  It  is  incapable  of  precise  definition,  and  its 
application  and  use  may  lead  in  some  cases  to  results  unsatis- 
factory, but  that  comes  as  directly  from  the  nature  and  extent 
of  the  duty  in  the  particular  case  as  from  the  phrase  by  which 

»79  Pa.  St.  106, 21  Am.  Rep.  49 :  First        « Smith  v.  First  Nat.  Bank,  99  Mass. 
Nat.  Bank  v.  Rex,  89  Pa.  St.  a08,  33    605. 
Am.  Rep.  767.  4  60  N.  Y.  27a 

-  MS  Ga.  797. 

147 


§  199.]  OKDINARY    BAILMENTS.  [PAP.T    I. 

a  breach. of  duty  is  expressed."     .     .  "That  which  consti- 

tutes gross  negligence,  that  is,  such  want  of  care  as  would 
charge  a  gratuitous  bailee  for  loss,  must  depend  very  much 
upon  the  circumstances  to  which  the  term  is  to  be  applied.  It 
has  been  defined  to  be  the  want  of  that  ordinary  diligence  and 
care  which  a  usually  prudent  man  takes  of  his  own  property 
of  the  like  description." 

The  Pennsylvania  court  has  said  that  "the  want  of  ordi- 
nary care  is  the  same  as  gross  negligence."^  The  Ohio  court 
has  said  that  in  this  class  of  cases  "a  bank  is  liable  for  the  loss 
of  a  special  deposit  occurring  through  want  of  that  degree  of 
care  which  good  business  men  would  exercise  in  keeping  prop- 
erty of  such  value ;  "  and  the  Kentucky  ^  court  has  said  "  that 
it  shall  be  the  care  and  diligence  that  a  reasonably  prudent 
person  generally  exercises  in  the  care  and  preservation  of  his 
own  property  of  like  nature."^ 

But  it  would  seem  upon  examination  of  the  authorities  that 
there  is  not  so  much  diversity  of  opinion  as  to  the  kind  of  dili- 
gence required  as  there  is  in  construing  the  facts  in  the  par- 
ticular case  and  in  determining  whether  they  are  sufficient  to 
prove  a  want  of  ordinary  diligence. 

§  199. Other  classes  of  custodians. —  There  are  other, 

classes  of  business  and  persons  that  should  be  mentioned  as  be^ 
longing  to  the  class  of  custodians  under  discussion;  as,  for 
example,  officers  who  have  in  their  custody  property  taken 
upon  writs  of  execution  or  attachment,^  administrators  who 
have  in  their  possession  and  under  their  control  the  personal 
effects  of  estates,  innkeepers  who  have  charge  of  the  baggage 
and  effects  of  their  guests,  pledgees  who  hold  property  as  se-j 
curity  for  the  payment  of  money  or  the  performance  of  ani 
obligation,  and  numerous  other  examples  which  might  bemen-| 
tioned.     In  all  these  cases,  as  in  the  examples  which  we  have 
thus  far  discussed,  the  question  which  determines  whether  the 
bailment  belongs  to  the  locatio  custodke  bailment  is.  Is  the  cus-| 
tody  and  care  of  the  property  wholly  without  benefit  to  the 
bailee  either  directly  or  indirectly?   If  it  is,  it  does  not  belon< 

1  Lancaster  County  Nat.  Bank  v.        3  Ray  v.  Bank  of  Kentucky,  10  Busl 
Smith,  62  Pa.  St.  47.  344. 

2  First  Nat  Bank  v.  Zent,  39  Ohio  ^Bobo^v.  Patton,  6  Heisk.  (TenaJ 
St.  105.  172. 

148 


CH.  XI.]  LOCATIO    CUSTODI^.  [§§  200,  201. 

to  this  class  of  bailments,  but  is  a  mere  dej)ositum  —  a  gratuitous 
bailment.^ 

§  200.  Liability  of*  bailee  in  custodiae  bailments. —  Thegen- 
eral  rule  governing  the  liability  of  the  bailee  in  this  class  of  bail- 
ments — "  mutual-benefit  bailments  " —  has  been  often  stated 
and  is  well  understood,  but  at  this  time  it  is  necessary  to  make 
special  application  of  that  rule  to  the  several  kinds  and  classes 
oi  locatio  custodicB  \)?i\\vi\exiiQ\  the  relation  being  the  "  letting 
of  care  and  custody  "  for  hire  to  the  bailee,  ordinary  diligence 
upon  his  part  is  required,  and  he  will  be  liable  for  ordinary 
negligence. 

The  general  definition  of  ordinary  diligence  has  been  often 
referred  to,  and  we  have  seen  that,  being  a  relative  term,  it  is 
sometimes  difficult  to  apply  it  to  a  given  case.  The  action  of 
an  ordinarily  prudent  man  under  just  such  circumstances  in 
matters  of  his  own  cannot  be  measured  and  limited  so  as 
to  arrive  at  the  precision  necessary  to  formulate  a  precise 
legal  definition  that  will  remove  the  question  from  the  realm 
of  facts  for  the  determination  of  the  jury  to  that  of  a  question 
of  law  to  be  construed  by  the  court.  Therefore,  each  case 
must  be  determined  upon  its  own  facts  by  the  aid  of  definitions, 
requirements  and  limitations  that  the  law  furnishes.  The  law, 
we  know,  requires  that  the  bailee  shall  exercise  ordinary  pru- 
dence in  caring  for  the  property  in  his  custody ;  that  care  that 
ordinarily  prudent  men  as  a  class  would  exercise  in  caring  for 
their  own  property,  under  just  such  circumstances ;  but  what  that 
care  is  must  always  be  determined  under  proper  instructions 
by  the  jury,  or,if  there  is  no  jury,  by  the  court,as  a  matter  of  fact. 

§  201.  When  does  the  liability  commence  and  end. —  The 
liability  of  the  bailee  in  this  class  of  bailments  is  for  the  care 
and  custody  of  the  property  placed  in  his  possession  and  control ; 
it  therefore  follows  that  his  liability  does  not  begin  until  he  has 
the  possession  and  control  of  the  property,  and  continues  until 
the  possession  and  control  is  surrendered  to  the  bailor,  or  his 
order,  or  assigns,  or  to  the  rightful  owner. 

'  As  to  officers  hold  in  <?  property  wliose  duty  is  performed  for  recom- 
upon  writs,  etc.,  Blake  V.  Kimball,  106  pense,  and  those  who  are  finders  of 
Mass.  115;  Cross  v.  Brown,  41  N.  H.  property  when  stimulated  by  offers 
283;  Aurentz  v.  Porter,  5G  Pa.  St.  115.  of  reward,  Cuuimiugs  v.  Glunn,  53 
As  to  the  liability  of  sheriffs,  officers    Pa.  St.  484. 

149 


§  199.]  OEDINAKY   BAILMENTS.  [PAET  I. 

A  practical  question  sometimes  arises  as  between  the  com- 
mon carrier  and  the  warehouseman  as  to  when  the  carrier's 
liability  ceases  and  the  warehouseman's  liability  begins;  or 
in  cases  where  the  carriers  are  proprietors  of  warehouses,  when 
their  liability  as  carriers  ceases,  and  their  liability  as  ware- 
housemen begins;  whether  they  are  still  subject  to  the  extraor- 
dinary liability  of  insurers,  or  simply  liable  for  negligence  in 
caring  for  the  property. 

An  early  case  in  New  York  {DeMott  &  Ingersoll  v.  Zara- 
loay)  ^  is  in  this  respect  interesting.  A  common  carrier,  Laraway, 
was  the  owner  and  master  of  a  canal  boat,  and  received  on 
board  his  boat  at  Troy  a  hogshead  of  molasses  and  other  goods 
to  be  transported  to  Kidder's  Ferry.  All  the  goods  were  safely 
unloaded  except  the  molasses;  in  an  attempt 'to  hoist  the  mo- 
lasses from  the  boat  into  the  warehouse,  and  when  the  hogs- 
head was  nearly  even  with  the  door,  the  tackle  attached  to 
the  warehouse  broke,  the  hogshead  fell  into  the  boat  and  was 
broken,  and  the  molasses  nearly  all  lost.  The  court  held  that 
Laraway  was  obliged  to  deliver  the  goods  in  safety.  The  de- 
livery was  not  complete  when  the  accident  happened,  and  the 
goods  were  still  at  the  risk  of  the  carrier,  and  that  it  was  a 
matter  of  no  importance  that  the  machinery  employed  in  un- 
loading the  molasses  was  attached  to  the  warehouse  and  hi 
longed  to  it  and  not  to  the  carrier.  It  was  pro  hac  vice  his 
tackle,  and  he  was  responsible  for  its  sufficiency;  the  liability' 
of  the  carrier  continuing  until  the  goods  were  delivered.^ 

The  whole  matter  is  a  question  as  to  who  has  taken  control 
of  the  property.  In  Merritt  v.  Old  Colony  B.  Co.^  it  woulc 
seem  at  first  blush  that  a  different  holding  was  made  than  in.| 
DeMott  V.  LaraiDcty.  In  that  case  an  engine  was  carried  by 
truckman  to  the  defendant's  depot  to  be  shipped  upon  its  rail-j 
way.  The  defendant's  agent  directed  the  truckman  to  back  his 
truck  up  to  the  track  near  a  derriciv  that  was  used  by  the  d( 
fendant  in  hoisting  heavy  freight,  and  that  a  car  would  b€ 
placed  there  by  the  employees  of  the  defendant,  who  would  put 
the  engine  on  the  car.  The  car  was  placed  and  the  men  com- 
menced to  load  the  engine,  the  agent  of  the  defendant  superin-j 
tending  the  loading;  the  chain  broke  and  the  property  was  iri^ 

1 14  Wend.  225.  2  witliam  v.  Lee,  Esp.  304.  3  n  Allen,  SO. 

150 


CII.   XI.]  LOCATIO    CUSTODI^.  [§  202. 

jured.  The  court  held  that  "the  carrier's  liability  commenced 
when  the  engine  was  delivered  to  and  accepted  by  them  for  the 
purpose  of  transportation ;  that  until  such  delivery  the  truckman, 
who  was  also  a  common  carrier,  w^ould  be  liable;  but  after 
such  delivery  and  acceptance  the  defendant  would  be  liable 
for  the  negligence  of  those  employed  by  them  to  load  or  trans- 
port the  engine;  that  it  was  for  the  jury  to  determine  from  the 
evidence  whether  there  had  been  such  delivery  and  acceptance, 
and  in  order  to  constitute  such  delivery  and  acceptance  it  must 
appear  that  the  defendant  had,  through  their  agents,  taken  and 
assumed  the  charge  and  custody  of  the  engine  for  the  purpose 
of  transportation."  ^ 

It  will  be  seen  that  the  principle  involved  in  the  two  cases 
was  the  same.  The  railroad  company,  by  its  servants  and 
agents,  took  the  control  and  direction  of  the  property  and  the 
loading  of  it  into  their  cars;  having  thus  taken  the  control  and 
possession  of  the  property  the  bailment  liability  began  and  the 
company  was  held  liable.  It  may  therefore  be  said  that  the 
liability  of  the  bailee  commences  the  moment  he  assumes  the 
control  of  the  property  and  it  is  surrendered  to  him,  and  con- 
tinues until  the  purpose  of  the  bailment  has  been  accomplished, 
or  the  control  is  rightfully  surrendered  to  another.  This  is  a 
question  of  fact  for  the  jury,  to  be  determined  by  the  circum- 
stances of  each  particular  case. 

§  202.  Proper  place  and  kind  of  storage. —  The  reasonable 
diligence  required  of  the  custodian  applies  to  the  place  in 
which  he  stores  the  property,  and  the  kind  of  care  and  custody 
he  gives  to  the  propert}^  w^hile  in  storage.  And  here  the  rules 
formerly  stated  apply  and  are  essential  and  important  in  deter- 
mining this  question.  We  are  to  consider  (1)  the  nature  and 
value  of  the  article;  (2)  the  customs  of  the  place  or  trade; 
(3)  the  condition  of  the  country  or  climate,  and  (4)  the  condi- 
tion of  the  times.     These  have  been  fully  discussed.- 

A  rickety,  tumbledown  building  which  would  not  protect 
from  the  weather  nor  bear  the  weight  of  the  property  stored, 
which  would  be  liable  to  collapse  and  thus  injure  and  destroy 
the  goods  stored,  would  not  be  a  reasonably  fit  storage-house 

^The  responsibility  of  a  bailee  be-    plication,  received  them.     Rogers  v. 
gins  when  the  goods  are  delivered     Stophel,  32  Pa.  St.  111. 
and  he  has,  either  expressly  or  by  im-        -  Ante,  §  43. 

151 


§  2(»±] 


ORDINARY    BAILMENTS. 


[part  I. 


for  furniture  or  grain;  ^  nor  would  a  place  well  adapted  for  the 
storing  of  grain,  or  furniture,  or  merchandise,  be  considered 
reasonably  fit  for  depositing  valuable  gems  and  jewelry,  or  the 
keeping  of  bonds  and  securities.  Then,  too,  the  place  where 
the  bank  or  safe-deposit  or  the  w^arehouse  is  situated  is  an  ele- 
ment to  be  taken  into  consideration  in  determining  whether 
proper  care  has  been  exercised  in  the  custody  of  the  property. 
What  might  be  considered  reasonably  safe  in  a  small,  quiet 
village  would  be  scarcely  any  protection  in  a  large  city.  An 
ordinary  iron  safe  in  one  place  might  be  deemed  an  ordi- 
narily fit  protection  for  the  special  deposits  of  the  country  bank, 
while  in  the  great  city  it  would  be  gross  negligence  to  use  the 


1  "  In  an  action  to  recover  for  an 
alleged  negligent  storing  of  the 
plaintiff's  carriage  injured  by  the 
falling  in  of  a  roof  loaded  with  snow, 
an  instruction  that  defendants  were 
bound  to  exercise  ordinary  care,  such 
as  a  prudent  man  would  take  with  his 
own  goods,  and  were  liable  if  thej' 
had  reason  to  know  that  the  build- 
ing was  unsafe,  was  held  unexcep- 
tional." Moulton  V.  Phillips,  10  R.  I. 
218.  Kaiser  v.  Latimer,  57  N.  Y.  Sup. 
883,  was  a  case  where  the  property 
was  destro}*ed  by  the  collapse  of  the 
warehouse  from  no  external  violence, 
and  it  was  held  that  in  such  a  case 
negligence  of  the  warehouseman  will 
be  presumed.  The  case  was  first  dis^' 
cussed  in  9  N.  Y.  App,  Div.  Rep.  36, 
where  the  facts  are  given.  In  189-1 
defendant,  a  warehouseman,  stored 
a  large  quantity  of  household  goods 
and  furniture  for  the  plaintiff.  In 
Api'il,  1894,  fire  occurred  causing  no 
injury  to  the  plaintiff's  goods,  but 
necessitating  repairs  to  the  buildiag. 
The  defendant  proceeded  to  make 
these  repairs,  which  consisted  of  the 
removal  of  bui'nt  timbers  and  beams 
and  replacing  them  with  new  ones, 
and  during  the  progress  of  the  work 
the  building  collapsed,  damaging 
many  of  the  plaintiff's  goods.  Plaint- 
iff brought  suit  and  recovered  a  ver- 
dict of  $700.     The  question  before 

15; 


the  court  was  as  to  the  burden  of 
proof.  The  court  charged  the  jury 
that  the  burden  of  proof  was  on  the 
defendant  who  had  failed  to  return 
the  goods,  and  that  he  must,  because 
of  such  failure,  show  that  he  acted 
in  regard  to  these  goods  or  dealt  with 
them  as  a  prudent  man  would  deal 
with  his  own  property.  Defendant 
took  an  exception,  asked  the  court  to 
charge  that  the  burden  of  proving 
negligence  was  on  the  plaintiff,  and 
the  court  so  held  and  reversed  the 
case.  In  1899  the  same  case,  after 
retrial,  came  before  the  court  of  ap- 
peals (57  N.  Y.  Sup.  883),  and  the 
court  there  held  that  "  the  collapse 
or  fall  of  the  building,  with  no  ex- 
ternal violence  or  earthquake  or 
similar  cause,  is  almost  invariably 
the  result  of  negligence,  either  in  the 
construction  of  the  building  or  in 
overloading  it.  It  is  so  exceptional 
an  occurrence  that  it  is  difficult  to 
imagine  a  case  to  which  the  rule  res 
ipsa  loquitur  would  more  forcibly 
apply;"  holding,  as  we  have  said, 
that  the  negligence  of  the  ware- 
houseman will  be  pi  jsumed  where 
the  property  was  destroyed  by  the 
collapse  from  no  external  violence 
of  the  building  in  which  he  stored 
them. 

Somewhat  opposed  to  this  is  the 
case  of  Willet  v.  Rich,  143  Mass.  356. 


en.  XI.]  LOCATIO    CUSTODI^.  [§  203. 

same  kind  of  protection.  In  the  city  not  only  the  latest  im- 
proved deposit-vaults,  with  the  very  best  of  locks  and  appli- 
ances to  protect  from  the  burglar,  but  faithful,  trusted  men 
must  be  on  guard  with  all  the  necessary  appliances  for  call- 
ing to  their  aid  the  police  force  of  the  city.  It  is  the  usual 
protection  given  in  the  like  business  by  the  persons  and  insti- 
tutions of  their  class  that  is  required. 

§  203.  Diligence  must  keep  pace  with  improvenients, — 
Since  the  splendid  improvements  by  reason  of  the  discoveries 
in  electricity  have  come  to  be  known  and  used,  the  discoveries 
in  the  use  and  tempering  of  steel,  the  great  improvements  in 
time-locks  and  alarms,  the  requirements  of  ordinary  diligence 
have  made  great  advances,  so  that  now  the  safe-deposit  corn- 
pan}^,  the  trust  company  and  the  banker,  to  be  ordinarily  dili- 
gent, must  be  equipped  with  these  improved  facilities  to  the 
extent  that  they  are  ordinarily  used  by  those  of  his  own  class. 

Hand  in  hand  with  the  great  inventions  of  the  age  go  the 
demands  of  the  law;  the  diligence  of  yesterday  may  be  the 
negligence  of  to-day.  The  custodian  for  hire  is  bound  to  keep 
pace  with  the  advanced  requirements  and  practice  of  his  class. 
If  he  does  this  he  escapes  liability  when  loss  or  injury  comes 
to  the  property  intrusted  to  him ;  if  he  fails,  he  has  failed  to 
be  ordinarily  diligent  and  is  liable  for  the  damages  that  result 
because  of  this  failure.  Not  that  it  is  necessary,  in  order  to 
escape  liability,  to  adopt  and  Use  the  very  best  and  newest  of 
these  appliances  and  inventions  for  the  purpose  of  securing 
safety  and  protection  to  their  customers,  but  that  they  are 
bound  to  use  such  as  the  ordinarily  prudent  custodians  of  their 
class  are  using;  such  as  are  ordinarily  used  and  demanded  at 
the  place  and  the  time,  and  by  those  engaged  in  like  pursuits. 

This  question  has  been  discussed  more  or  less  in  cases  where 
it  was  alleged  that  suitable  machinery  was  not  in  use,  etc. 
Those  cases  are  somewhat  analogous  to  the  question  we  are 
here  disc-ussing.  In  the  case  of  Titus  v.  Railroad  Go}  the 
court  used  this  language:  "  Absolute  safety  is  unattainable  and 
employers  are  not  insurers.  They  are  liable  for  the  conse- 
querices,  not  of  danger  but  of  negligence;  and  the  unbending 
test  of  negligence,  in  method,  machinery  and  appliances,  is 
the  ordinary  usage  of  the  business." 

1  136  Pa.  St.  348;  Shadford  v.  Ann  Arbor  St.  Ry.  Co.,  Ill  Mich.  390. 

153 


204.J 


OEDINARY    BAILMENTS. 


[part  I. 


§20-4.  Proof  of  negligence. —  The  bailee  in  this  class  of 
bailments,  ^'•Locatio  CustoduE^''  is  required  to  exercise  ordi- 
nary diligence  and  is  liable  for  ordinary  negligence  in  case 
of  loss  or  injury  to  the  property  bailed.^     His  liability,  there- 


1  Story,  Bailm.,  sec.  144;  Bogert  v. 
Haight,  20  Barb.  251;  Myers  v. 
Walker,  31  111,  353;  Rogers  y.  Stophel, 
32  Pa.  St.  Ill;  Dimmick  v.  St.  Paul 
E.  Co.,  18  Wis.  494;  Blinn  v.  Mayo, 
10  Vt.  56-59;  Buckingham  v.  Fisher, 
70  111.  121.  In  Knapp  v.  Curtis,  9 
Wend.  60,  plaintiff  brought  suit  to 
recover  for  a  quantity  of  salt  dam- 
aged by  flood.  The  salt  was  piled 
upon  the  wharf  of  defendants  in  Buf- 
falo; the  agent  of  plaintiff,  in  De- 
cember, requested  defendants  to  put 
the  salt  into  their  warehouse,  but 
it  was  not  done.  In  January  a  storm 
on  Lake  Erie,  which  commenced  at 
midnight,  raised  the  water  very  sud- 
denly, and  the  water  flowed  over  the 
wharf  and  injured  the  lower  tiers  of 
the  salt  in  barrels.  The  wharves  and 
storehouses  of  the  defendants  were 
built  considerably  higher  than  the 
water  had  ever  previous  to  this  oc- 
currence been  known  to  rise,  and  the 
salt  upon  the  wharf  was  but  little  if 
any  more  exposed  to  injury  from 
the  storm  than  it  would  have  been 
had  it  been  rolled  into  the  store- 
house. The  judge  charged  the  jury 
that  the  defendants  were  liable  only 
in  consequence  of  neglect  to  use  that 
care  in  the  preservation  of  the  salt 
that  prudent  men  would  ordinarily 
use  over  their  own  property;  that  to 
justify  a  verdict  against  them  the 
jury  must  be  satisfied  that  the  in- 
jury complained  of  was  occasioned 
by  the  neglect  of  the  defendants 
either  in  not  raising  their  wharf  to  a 
sufficient  height,  in  not  rolling  the 
salt  into  the  storehouse,  or  in  not  se- 
curing it  after  the  commencement 
of  the  storm,  etc.  Savage,  C.  J.,  in 
rendering  the  opinion  of  the  court 
said:  "  The  judge  stated  the  law  cor- 


rectly to  the  jury  that  the  defend- 
ants, as  warehousemen  or  storekeep- 
ers, were  not  liable  if  they  had  used 
all  the  care  and  diligence  respecting 
the  salt  in  question  which  prudent 
men  exercise  in  relation  to  their  own 
property;  that  if  they  had  been 
guilty  of  negligence,  it  must  have 
consisted  either  (1)  in  a  want  of  care 
and  prudence  in  not  raising  their 
wharf  and  storehouse  higher,  or  (2) 
in  omitting  to  put  the  salt  in  the 
storehouse,  or  (3)  in  omitting  to  se- 
cure the  salt  after  the  storm  com- 
menced. That  all  these  points  of 
testimony  were  entirely  in  favor  of 
the  defendants.  First,  that  the  store- 
house and  wharf  were  as  high  as  any 
other,  and  the  water  had  never  risen 
so  high  as  upon  the  occasion  of  this 
loss;  second,  had  the  salt  been  in  the 
storehouse  the  damage  would  have 
been  about  the  same;  and  third,  the 
rise  was  so  sudden  that  it  did  not 
appear  that  the  salt  could  have  been 
saved."  Cincinnati  &  Chicago  Air 
Line  R.  Co.  v.  McCool,  26  Ind.  140: 
Lancaster  Mill  v.  Merchants'  Cotton 
Press  Co.,  89  Tenn.  1;  Willey  v.  Alle- 
gheny City,  118  Pa.  St.  490.  While 
the  law  demands  that  the  class  of 
storage  should  be  reasonably  fit  and 
safe,  it  does  not  require  that  the 
warehouseman  shall  construct  build- 
ings secure  from  all  possible  con- 
tingencies; if  they  are  reasonably 
and  ordinarily  safe  against  ordinary 
and  common  occuri'ences  it  is  suffi- 
cient. Cowles  V.  Pointer,  26  Miss. 
253;  Waldon  v.  Finch,  70  Pa.  St.  460; 
Hickey  v.  Morrell,  102  N.  Y.  454. 
"Evidence  that  poultry,  when  put 
in  cold  storage,  was  in  good  con- 
dition; that  there  was  moistui'e  in 
the   room  where   it  was  kept;  and 


154 


CH.  XI.]  LOCATIO    CUSTODI^.  [§  205. 

fore,  depends  upon  proof  of  negligence,  or,  under  certain  cir- 
cumstances, proof  that  he  exercised  ordinary  diligence. 

The  degree  of  care  required  and  the  facts  that  generally 
make  out  a  case  of  ordinary  diligence  have  been  fully  defined 
and  discussed.  As  a  general  rule  the  burden  of  proof  is  upon 
the  bailor  to  prove  that  the  bailee  was  guilty  of  negligence. 

As  we  have  seen,  the  bailee  is  not  liable  for  loss  or  injury 
that  is  caused  by  (1)  the  act  of  God,  as,  for  example,  lightning, 
earthquakes,  tornadoes,  storms,  and  the  like;  or  (2)  by  the  act  of 
the  public  enemy,  ae  by  capturing  and  appropriating  the  prop- 
erty and  destroying  it;  or  (3)  by  inevitable  accident,  as  by  fire, 
burglary,  etc.,  unless  by  exercising  ordinary  diligence  loss  by' 
reason  of  these  causes  could  have  been  averted. 

When,  therefore,  the  loss  or  injury  to  the  property  is  ac- 
counted for  by  reason  of  these  causes,  the  burden  of  showing 
that  by  exercising  reasonable  care  and  diligence  the  loss  or  in- 
jury could  have  been  averted  is  upon  the  bailor. 

§  205.  Does  the  burden  of  proof  of  negligence  shift. — 
While  the  general  rule  is  as  we  have  stated,  if  the  bailee  fails 
to  redeliver  the  property  when  demanded,  or  at  the  expiration 
of  the  bailment  returns  it  in  a  damaged  condition,  a,  prima 
facie  case  of  negligence  is  made  out  agains^  him,  and  the  bur- 
den of  proof  is  upon  him  to  show  that  the  loss  or  injury  of  the 
property  was  occasioned  by  some  of  the  acts  which  would  ex- 
cuse the  bailee  for  the  loss  of  property ;  as  by  reason  of  the  act 
of  God,  the  public  eneni}'-,  or  unavoidable  accident,  as,  for  ex- 
ample, by  riot  or  burglary,  or  such  like  causes  that  excuse  the 
bailee.  But  whether  it  would  be  a  complete  defense  to  show 
that  the  propert}?^  was  destroyed  by  fire  or  was  lost  in  a  storm, 
or  by  such  causes  as  would  excuse  the  custodian,  there  is  some 
disagreement  among  the  authorities.  Some  of  the  courts  have 
held  that  the  defendant,  bailee,  mn^t  go  further  and  show 
that  he  exercised  reasonable  diligence  in  endeavoring  to  pre- 
vent the  loss  or  injury;  while  others  contend  that  the  burden  of 
proving  negligence  never  shifts  from  the  plaintiff.  Although 
failure  ^to  return  the  property,  or  returning  it  in  a  damaged 

that  this  would  produce  mould,  war     tJie  moisture.     Leidy  v.  Quaker  City 
rants    recovery  against    the    warj-     Cold  Storage  &  Warehouse   Co.,  86 
houseman,    without    proof    of    any     Atl.  851,  180  Pa.  St.  333." 
specific  act  of  negligence  producing 

155 


§  205.]  ORDINARY    BAILMENTS.  [PART  I. 

condition  without  proving  that  it  was  occasioned  by  some  of 
the  causes  that  would  excuse  the  bailee,  makes  out  a  prima 
facie  case  of  negligence,  nevertheless  if  the  defendant  proves 
that  the  loss  or  injury  was  the  result  of  some  of  the  acts  that 
would  excuse  him,  he  is  not  required  to  show  that  the  acts 
could  not  have  been  prevented  by  diligence  upon  his  part, 
because  the  plaintiff  still  has  the  burden  of  proving  negligence, 
and  in  order  to  recover  must  prove  that  the  defendant  by  the 
exercise  of  reasonable  care  and  diligence  might  have  avoided 
the  result  and  saved  the  property ;  in  other  words,  that  the 
burden  of  showing  negligence  never  shifts  but  is  always  upon 
the  plaintiff. 

In  Lichteoiheiin  v.  Boston  &  C.  R.  Co}  the  defense  was  that  the 
goods  were  fraudulently  abstracted  from  defendants'  custody. 
The  court  say:  "The  further  question  is  one  of  more  impor- 
tance. It  arises  upon  a  prayer  for  instructions  to  the  jury  that 
the  burden  of  proof  was  on  the  defendants  to  show  not  only 
the  loss  of  the  goods  from  their  warehouse,  but  the  manner 
of  their  loss.  The  court  so  far  adopted  the  prayer  as  to  rule 
that  the  burden  of  showing  the  loss  of  the  articles  from  their 
custody,  and  that  such  loss  had  not  been  occasioned  by  any 
want  of  ordinary  care  and  diligence  on  their  part,  was  on  the 
defendants.  The  court,  however,  further  ruled  that  they  were 
not  bound  to  show  tlie  precise  manner  in  which  the  loss  oc- 
curred, but  that,  if  unable  to  do  this,  they  might  exonerate 
themselves  from  that  burden  by  clearly  showing  that  the  loss 
did  not  happen  from  any  negligence  or  want  of  care  on  their 
part.  This,  taken  with  the  qualifications,  is  unobjectionable. 
But  generally  the  carrier  would  have  to  show  some  mode  in 
which  the  loss  occurred  to  sustain  the  burden  on  him,  and 
establish  the  fact  that  the  loss  had  not  happened  through  his 
negligence.  To  hold  as  an  abstract  proposition  that  he  must 
in  all  cases  show  the  precise  manner  in  which  the  goods  were 
taken  from  him,  or  destroyed  while  in  the  warehouse,  might 
in  some  cases  charge  him  unreasonably." 

In  Lynch  v.  IChcher-  it  was  held  that  "warehousemen  are 
held  to  the  same  degree  of  care  which  prudent  persons  usually 
take  of  their  own  property,  and  proof  that  proi)erty  was  deliv- 
ered to  a  warehouseman  in  good  condition,  and  was  damaged 

i  11  Gush.  (Mass.)  70.  a  46  N.  Y.  Sup.  428. 

156 


CH.   XI.]  LOCATIO    CUSTODIJi:.  [§  206. 

when  returned  by  him,  makes  out  2^  jprima facie  case  of  negli- 
gence against  him." 

In  Parry  v.  Squire  ^  it  was  held  that  "  evidence  that  the 
property  was  in  good  condition,  and  that  it  was  not  in  such 
good  condition  when  redelivered  by  him,  makes  a  prima  facie 
case  against  him." 

§  206.  The  question  sunimed  up  and  the  rule  settled. — 
The  question  as  to  the  burden  of  proof  seems  to  be  settled  in 
the  opinion  of  the  court  in  the  case  of  Claflin  v.  Meyer,-  which 
held  that  where  there  is  a  failure  to  account  for  the  property 
or  its  injury,  and  a  demand  and  an  unexplained  refusal  to  de- 
liver is  proven,  a  jprima  facie  case  of  negligence  is  made  out; 
but  when  the  loss  or  injury  is  accounted  for  as  having  been 
occasioned  by  some  of  the  causes  which  excuse  the  bailee,  then 
the  defense  is  complete,  unless  the  plaintiff  further  shows  that 
the  bailee  by  exercising  ordinary  diligence  might  have  avoided 
the  loss  or  injury;  that  the  burden  of  proving  negligence  never 
shifts  from  the  plaintiff.  In  that  case  the  goods  were  lost  by 
a  burglary.  The  court  say:  "Upon  its  appearing  that  the 
goods  were  lost  by  a  burglary  committed  upon  the  defendants' 
warehouse,  it  was  for  the  plaintiffs  to  establish  affirmatively 
that  such  burglary  was  occasioned  or  was  not  prevented  by 
reason  of  some  negligence  or  omission  of  due  care  on  the 
part  of  the  warehouseman. 

"The  cases  agree  that  where  a  bailee  of  goods,  although  lia- 
ble to  their  owner  for  their  loss  only  in  case  of  negligence, 
fails,  nevertheless,  upon  their  being  demanded,  to  deliver  them 
or  account  for  such  non-delivery,  or,  to  use  the  language 
of  Sutherland,  J.,  in  Schmidt  v.  Blood,^  where  there  is  a  total 
default  in  delivering  or  accounting  for  the  goods,  this  is  to 
be  treated  as  prima  facie  evidence  of  negligence.  This  rule 
proceeds  either  from  the  assumed  necessity  of  the  case,  it  being 
presumed  that  the  bailee  has  exclusive  knowledge  of  the  facts 
and  that  he  is  able  to  give  the  reason  for  his  non-delivery,  if 
any  exist,  other  than  his  own  act  or  fault,  or  from  a  presump- 
tion that  he  actually  retains  the  goods  and  by  his  refusal 
converts  them. 

"  But  where  the  refusal  to  deliver  is  explained  by  the  fact  ap- 

1 79  111.  App.  324.  2  75  N.  Y.  262.  3  9  Wend.  268. 

157 


I  200.]  ORDINARY  BAILMENTS.  [PART  I. 

pearing  that  the  goods  have  been  lost,  either  destroyed  by  fire 
or  stolen  by  thieves,  and  the  bailee  is  therefore  unable  to  de- 
liver them,  there  is  no  prima  facie  evidence  of  his  want  of 
care,  and  the  court  will  not  assume,  in  the  absence  of  proof  on 
the  point,  that  such  fire  or  theft  was  the  result  of  his  negli- 
gence. Grover,  J.,  in  Lamh  v.  Camden  cb  Arnboy  R.  Co.^  says, 
in  delivering  the  opinion  of  the  court,  the  question  is  '  whether 
the  defendant  was  bound,  to  go  further  {i.  e.,  than  showing  the 
loss  by  fire)  and  show  that  it  and  its  employees  were  free  from 
negligence  in  the  origin  and  progress  of  the  fire,  or  whether  it 
was  incumbent  upon  the  plaintiffs,  to  maintain  the  action,  to 
prove  that  the  fire  causing  the  loss  resulted  from  such  neg- 
ligence.' And  he  proceeds  to  show  that  the  charge  of  the 
judge  who  tried  the  cause  gave  to  the  jury  the  former  instruc- 
tion and  that  this  was  contrary  to  the  law  and  erroneous.  So 
Sutherland,  J.,  in  9  Wend,  {supra),  in  the  case  of  a  warehouse- 
man, says:  The  07ivs  of  showing  the  negligence  'seems  to  be 
upon  the  plaintiff  unless  there  is  a  total  default  in  delivery  or 
accounting  for  the  goods.'  And  he  cites  a  note  of  Judge 
Cowen  to  his  report  of  Piatt  v.  Ilihhard^  in  which  that  very 
learned  author  says,  criticising  and  questioning  a  charge  of 
the  circuit  judge,  'the  distinction  would  seem  to  be  that  when 
there  is  a  total  default  to  deliver  the  goods  bailed  on  demand, 
the  onus  of  accounting  for  the  default  lies  with  the  bailee; 
otherwise  he  shall  be  deemed  to  have  converted  the  goods  to 
his  own  use  and  trover  will  lie;^  but  when  he  has  shown  loss, 
or  where  the  goods  are  injured,  the  law  will  not  intend  negli- 
gence.    The  onus  is  then  shifted  upon  the  plaintiff. 

"  It  will  be  seen,  as  the  result  of  these  authorities,  that  the 
burden  is  ordinarily  upon  the  plaintiff  alleging  negligence  to 
])rove  it  against  a  warehouseman  who  accounts  for  his  failure 
to  deliver  by  showing  a  destruction  or  loss  from  fire  or  theft. 
It  is  not  of  course  intended  to  hold  that  a  warehouseman,  re- 
fusing to  deliver  goods,  can  impose  any  necessity  of  proof  upon 
the  owner  by  merely  alleging  as  an  excuse  that  they  have  been 
stolen  or  burned.  These  facts  must  appear  or  be  proved  with 
reasonable  certainty.  Xor  do  we  concur  in  the  view  that  there 
is  in  these  cases  any  real  '  shifting '  of  the  burden  of  proof.    The 

1 46  N.  Y.  271.  2  7  Cow.  500.  »  Anonymous,  2  Salk.  6o5. 

158 


en.  .\1.]  LOUATIO    CL'STODIJ5.  [§  207. 

warehouseman  in  the  absence  of  bad  faith  is  only  liable  for 
negligence.  The  plaintiff  must  in  all  cases,  suing  him  for  the 
loss  of  goods,  allege  negligence  and  prove  negligence.  This 
burden  is  never  shifted  from  him.  If  he  proves  the  demand 
upon  the  warehouseman,  and  his  refusal  to  deliver,  these  facts 
unexplained  are  treated  by  the  courts  ^'S,  prhaa  facie  evidence 
of  negligence;  but  if,  either  in  the  course  of  his  proof  or  that 
of  the  defendant,  it  appears  that  the  goods  have  been  lost  by 
theft,  the  evidence  must  show  that  the  loss  arose  from  the 
negligence  of  the  warehouseman. 

"  Applying  these  principles  to  the  present  case,  we  must  hold 
that  when  it  appeared,  as  it  did,  that  the  goods  were  taken  from 
the  defendants'  warehouse  by  a  burglarious  entry  thereof,  the 
plaintiffs  should  have  shown  that  some  negligence  or  want  of 
care,  such  as  a  prudent  man  would  take  under  similar  circum- 
stances of  his  own  property,  caused  or  permitted  or  contributed 
to  cause  or  permit  that  burglary."  ^ 

§  207.  Contributory  negligence. —  While  it  is  true,  as  wef 
have  seen,  that  the  bailee  must  answer  for  his  ordinary  negli- 
gence, and  that  it  extends  to  requiring  him  to  use  ordinary 
diligence  in  avoiding  loss  or  injury  of  the  property  by  any 
of  the  causes  that  excuse  loss  or  injury,  there  is  in  all  such  cases 
<3ertain  duties  resting  upon  the  bailor. 

Contributory  negligence  as  a  defense  is  applicable  to  cases 
of  bailments,  and  whenever  it  can  be  shown  that  the  bailor 
himself  contributes  to  the  negligence  that  occasioned  the  loss 
or  injur}'^,  he  cannot  recover  in  an  action  against  the  bailee. 
In  Parker  v.  Union  Ice  &  Salt  Co.^  it  was  held  "  that  damages 
are  not  recoverable  from  a  warehouseman,  a  bailee  for  hire, 
because  of  injury  to  goods  stored  through  the  unfitness  of  the 
warehouse  as  a  place  of  storage,  where  the  bailor  has  equal 
opportunities  with  the  bailee  of  knowing  whether  his  goods 
are  liable  to  injury  by  storage  in  an  unsuitable  place.  The 
€ourtsay:  'From  the  above  facts  the  court  concluded'  (the 
court  below),  'hs  a  matter  of  law,  that,  the  parties  being 
equally  negligent,  no  recovery  could  be  had.'     The  conclusion 

iClaflin  V.   Meyer,  75  N.  Y.  262;     N.    Y.   184;    Knight  v.    Piella,    111 
Fairfax  v.  Railway  Co.,  67  N.  Y.  11;     Mich.  9. 
Steers  v.  Liverpool  Steamship  Co.,  Tfl        259  Kan.  626,  54  Pac.  672. 
N.  Y.  1;  Burnell  v.  Railway  Co.,  45 

159 


§  207.]  ORDINARY    BAILMENTS.  [PAET    I. 

of  the  court  was  sound.  The  ordinary  rules  of  liability  for 
neo'Iio:ence  and  contributory  negligence  obtain  in  cases  of  bail- 
ment such  as  the  one  in  question.  A  bailor  who  knows  the 
unfitness  of  the  place  of  storage  of  goods  provided  by  the 
bailee,  or  who  has  equal  opportunities  with  the  bailee  of  know- 
ing it,  who  sees  and  inspects  the  place  of  storage,  and  who  — 
there  being  no  latent  defects  in  it  —  passes  judgment  upon  it 
as  a  fit  place  for  his  purposes,  will  be  deemed  equally  at  fault 
with  the  bailee  if  damage  result  to  his  goods."  The  principle 
has  been  generally  recognized  as  applying  to  cases  of  liability 
of  bailee.^ 

In  the  case  of  ScJmijys  v.  Strum^  defendant  kept  a  bath  tank 
and  charged  five  cents  for  a  bath ;  he  supplied  no  lockers,  and 
his  patrons  deposited  their  clothing  on  a  bench  near  the  tank. 
When   requested  he  would  receive  from  his  customers  such 
articles  as  they  wished  particular  care  taken  of.  While  plaintiff, 
who  was  a  regular  customer,  was  bathing,  a  w^atch,  a  diamond 
ring  and  §55  were  stolen  from  his  clothes  on  the  bench.     He. 
had  not  availed  himself  of  the  privilege  of  depositing  these 
valuable  articles  with  the  proprietor.     The  court  sa}^:    "The 
defendant's  duty  was  measured  by  what  he  undertook  to  do. 
The  accommodations  he  afforded  and  the  protection  which  he 
gave  were  all  known  to  those  who  frequented  his  place,  and  in 
accepting  what  was  offered  they  must  be  deemed  to  have  been 
satisfied  with  it.     It  was  that  and  that  alone  which  they  paid 
for,  and  the  measure  of  the  defendant's  obligation  to  them  was 
the  careful  observance  of  that  which  the  facts  show  he  assumed 
to  perform."     .     .     ,     "We  think  also  that  the  plaintiff  was, 
guilty  of  contributory  negligence  in  placing  his  valuables  in] 
such  an  exposed  place,  and  in  not  depositing  them  with  the  d( 
fendant  for  safe  keeping  as  he  had  previously  done."     . 
"  Having  failed  to  avail  himself  of  a  means  of  protection  af-| 
forded  by  the  defendant,  which  ordinary  prudence  requirec 
him  to  adopt,  he  was  himself  guilty  of  negligence  w^hich  ii 
itself  was  sufficient  to  bar  a  recovery."  "^ 

1  Defendant's    customer,    without  woman.    In  the  meantime  the  purs 

his  request  or  notice  to  him.  placed  was  stolen.     Held,  that  the  custom-J 

her  jacket  over  her  purse  on  a  table  er's  negligence  precluded  a  recovery.) 

in  a  fitting-room  in  his  tailoring  es-  McAllistet  v.  Simon,  57  N.  Y.  S.  T6'i 

tablishment,  and  then  left  the  room  254  n.  Y.  Sup.  140. 

until  notified  to  return  by  his  fore-  3  "  when  the  bailor,  or  depositor^ 

160 


ClI.  XI.]  LOCATIO   CUSTODI.E.  ,      [§§  208,  209. 

§  208.  Negligence  of  servants. —  The  general  rule,  making 
the  master  liable  for  the  acts  of  servants  while  acting  within 
the  scope  of  his  em.ployment,  obtains  here,  and  for  the  same 
reason.  The  right  of  selection  is  the  foundation  of  the  rule. 
The  master  has  the  right  to  choose  his  servants,  and  must 
choose  those  upon  whom  he  may  depend.  If  the  master  has 
not  the  right  to  choose,  he  may  not  be  held  responsible  for  the 
servant's  acts;  and,  indeed,  the  relation  of  master  and  servant 
cannot  be  said  to  exist  if  the  right  of  choice  does  not  exist.' 
But  the  relation  of  master  and  servant  existing,  it  follows  that 
the  master  is  liable  for  the  negligence  of  the  servant  while  act- 
ing within  the  scope  of  the  employment,  and  for  the  reasons 
above  stated. 

This  rule  applies  to  corporations  as  well  as  individuals.^  It 
therefore  follows  that  the  custodian  bailee  is  liable  for  the  acts 
and  for  the  negligence  of  his  servants.  The  warehouseman, 
the  elevator  man,  the  safe-deposit  company,  the  common  car- 
rier, the  wharfinger,  the  storage  company  and  all  those  en- 
gaged in  the  business  of  caring  for  the  property  and  giving 
custody  for  hire,  are  subject  to  this  rule  of  law. 

§209.  Unauthorized  use  of  chattels. —  This  subject  has 
been  quite  sufficiently  discussed  under  another  head.^  It  may 
remain,  however,  to  be  said  that  the  rule  applies  to  custody 
bailments  the  same  as  to  any  other  class  of  bailments.  The 
bailee  has  no  right  to  use  the  property  that  is  placed  in  his  care 
and  custody  for  keeping;  or  to  use  it  in  any  way  not  consist- 
ent with  the  bailment  relation;  and  should  he  at  anv  time  be 

not  only  knows  the  general  character  ter  was  at  the  time  acting  under  em- 
and  habits  of  the  bailee  or  depositary,  ployment  by  the  former;  it  must  be 
but  the  place  where  and  the  manner  shown  in  addition  that  the  employ- 
in  which  the  goods  deposited  are  to  ment  created  the  relation  of  master 
be  kept  by  him,  he  must  be  presumed  and  servant."  King  v.  N.  Y.  etc.  R. 
to  assent  in  advance  that  his  goods  Co.,  G6  N.  Y.  181;  Kimball  v.  Cush- 
shall  be  thus  treated;  and  if  under  man,  103  Mass.  194;  Pickens  v. 
such  circumstances  they  are  dam-  Diecker,  21  Ohio  St.  212;  Merchants' 
aged  or  lost,  it  is  by  reason  of  his  own  Nat.  Bank  v.  State  Nat.  Bank,  10 
fault  or  folly."  Knowlds  v.  Atlantic  Wall.  (U.  S.)  604. 
&  St.  L.  R.  Co.,  38  Me.  55.  ^Frankfort  Bank  v.  Johnston,  24 
iHexamer  v.  Webb,  101  N.  Y.  377,  Me.  490;  Munster  v.  Chicago.  M.  & 
held:  -'In  order  to  establish  the  lia-  St.  P.  Ry.  Co.,  61  Wis.  325;  Kimball 
bility  of  one  person  for  an  injury  v.  Cushman,  103  Mass.  194 
caused  by  the  negligence  of  another,  3  A7ite,  §^  46,  47. 
it  is  not  enough  to  show  that  the  lat- 

11  IGl 


§§  210,  211.]  ORDIXAEY    BAILMENTS.  [PART    I. 

guilty  of  using  the  chattels  for  his  own  benefit,  and  in  viola- 
tion of  the  bailment  relation,  it  would  terminate  the  bailment. 

§210.  Delivery,  misdelivery,  non-delivery.  —  The  bailee 
who  for  hire  has  the  chattels  for  safe  keeping  in  his  custody 
must,  at  the  termination  of  the  bailment,  return  the  goods;  it 
may  be  that  the  bailment  contract,  by  express  stipulation  or  by 
implication,  does  not  provide  or  contemplate  the  return  of  the 
specific  articles  bailed,  as  in  case  of  wheat  stored  with  the  ele- 
vator-man with  the  implied  understanding  that  the  particular 
wheat  will  be  stored  in  large  bins  Avith  other  wheat,  and  that 
the  bailment  will  be  fully  answered  as  to  all  its  requirements 
by  returning  other  wheat  of  the  same  kind,  quality  and  quan- 
tity; or  where  wheat  is  stored  with  the  miller  to  be  returned 
in  flour  as  called  for.  But  in  every  case  of  this  class  of  bail- 
ments, redelivery  m  some  form  is  contemplated,  and  it  is  the 
duty  of  the  bailee  to  see  that  there  is  such  a  redelivery  as  the 
bailment  contract  requires.  Nor  can  he  dispute  the  bailor's 
title  except  at  his  own  risk,  or  require  of  him,  before  redelivery, 
proof  of  the  property  bailed.^ 

Not  only  is  the  bailee  required  to  deliver  the  goods  he  has 
had  in  his  custody  to  the  bailor  at  the  termination  of  the  bail- 
ment, but  for  a  misdelivery,  whether  by  mistake  or  negligence, 
he  will  be  liable  in  trover;  for  mistake  or  negligence  in  the 
performance  of  this  duty  which  renders  it  impossible  for  him 
to  deliver  the  property,  he  will  be  held  accountable  the  same 
as  though  he  had  converted  the  property  to  his  own  use.'^  He 
will  be  held  to  know  who  his  bailor  is,  and  can  have  no  legal 
reason  for  making  a  mistake  in  delivery. 

§  211.  Confusion  of  goods. — •  As  has  been  seen,  the  contract 
of  bailment,  often  by  express  terms  or  by  implication,  pro- 
vides that  the  chattel  bailed,  as  wheat  or  corn,  may  be  mixed 
with  other  property  of  the  same  kind  and  quality,  and  that  the 
bailment  can  be  satisfied  by  a  redelivery  of  the  same  qualit}'^ 
from  the  common  mass.  The  obligation  is,  however,  always 
upon  the  bailee,  unless  acting  by  the  direction  of  the  bailor,  to 
see  to  it  that  the  objects  and  contract  restrictions  of  the  bail- 
ment are  fully  adhered  to,  and  if  he  fails  in  this  he  becomes  lia- 

1  McCaflferty  v.  Brady  (Pa.),  9  At!.  11  Gush.  70;  Bank  of  Oswego  v,  Doyle, 
37.  91   N.   Y.  32;    Collins  v.  Burns,  63 

2  Lichtenheim  v.  Boston  P.  R.  Co.,     N.  Y.  1. 

162 


CH.  XI.]  LOCATIO    CUSTODI,E.  [§  211. 

ble.  So,  if  he  mixes  grain  with  grain  of  an  inferior  quality,  or 
so  confuses  goods  with  other  gootls  to  the  damage  of  the  bailor, 
he  will  be  held  to  have  converted  the  property ;  for,  when  de- 
manded, each  bailor  is  entitled  to  his  share,  and,  unless  the  rule 
is  varied  by  contract  or  usage,  to  his  specific  property.  In 
Bretz  V.  Diehle'^  it  was  held  "that  if  a  bailee,  having  charge 
of  the  property  of  others,  should  confound  it  with  his  own 
so  that  the  line  of  distinction  cannot  be  traced,  all  the  incon- 
venience of  the  confusion  is  thrown  upon  the  bailee  who  pro- 
duces it.  However,  where  the  owners  consent  to  have  their 
wheat  mixed  in  a  common  mass,  each  remains  the  owner  of  his 
share  in  the  common  stock.  If  the  wheat  is  delivered  in  pur- 
suance of  a  contract  bailment,  the  mere  fact  that  it  is  mixed 
with  a  mass  of  like  quality  with  the  knowledge  of  the  depos- 
itor, or  bailor,  does  not  convert  that  into  a  sale  which  was  orig- 
inally a  bailment,  and  the  bailee  of  the  whole  mass,  of  course, 
has  no  greater  control  of  the  mass  than  if  the  nature  of  each 
were  kept  separate.  If  the  commingled  mass  has  been  deliv- 
ered, not  simply  stored,  each  is  entitled  on  demand  to  receive 
his  share;  if  for  conversion  into  flour,  to  his  proper  proportion 
of  the  product."  "It  makes  no  difference  that  the  bailee  had 
in  like  manner  contributed  to  the  mass  of  his  own  wheat,  for, 
although  the  absolute  owner  of  his  own  share,  he  still  stands 
as  a  bailee  of  the  others,  and  he  cannot  abstract  more  than 
their  share  from  the  common  stock  without  a  breach  of  the 
bailment,  which  will  subject  him  not  only  to  a  suit,  but  may 
result  in  criminal  prosecution."  ^ 

The  question  often  arises.  Is  the  particular  contract  by  rea- 
son of  which  the  property  was  commingled,  a  contract  creat- 
ing a  bailment,  or  is  it  one  of  sale?  This  general  question 
was  discussed  under  our  general  treatment  of  the  subject,^  but 
we  may  perhaps  be  permitted  to  note  the  distinction  here  as 
touching  the  admixture  or  commingling  of  property  bailed  for 
custody.  Here,  as  always,  it  seems  to  be  a  question  of  con- 
trol. Can  the  bailor  compel  the  bailee  to  deliver  his  property 
to  him,  or  is  it  by  the  contract  out  of  his  control  ?    In  Zt/on  v. 

U17  Pa.  St.  589;  Chase  v.  Wash-        2  Hutchinson  v.  Com.,  32  Pa.  St  473. 
burn,  1  Ohio  St.  244;  Hutchinson  v.        ^  Ante,  §  23. 
Com.,  32  Pa.  St.  472. 

103 


I  212.]  ORDINARY    BAILMENTS.  [PART    I. 

Lenoii'^  the  distinction  is  thus  stated:  "If  the  dealer  has  the 
right  at  his  pleasure  either  to  ship  and  sell  the  same  on  his 
own  account,  and  pay  the  market  price  on  demand,  or  retain 
and  redeliver  the  wheat,  or  other  wheat  in  the  place  of  it,  the 
transaction  is  a  sale.  It  is  only  when  the  bailor  retains  the 
right  from  the  beginning  to  elect  w4iether  he  will  demand  the 
redelivery  of  his  property,  or  other  of  like  quantity  and  grade, 
that  the  contract  will  be  considered  one  of  bailment."  "The 
distinction  is,  Can  the  depositor  by  his  contract  compel  a  de- 
livery of  wheat  whether  the  dealer  is  willing  or  not  ?  If  he 
can,  the  transaction  is  a  bailment." 

§  212.  Criminal  liability. —  The  bailee  in  this  class  of  bail- 
ments holds  the  property  for  no  other  purpose  than  to  care  for 
it  during  the  continuance  of  the  relation  in  accordance  with 
the  contract,  and  redeliver  it  to  the  bailor  upon  the  termina- 
tion of  the  relation.  As  Ave  have  seen,  he  has  no  title  to  the 
property  except  that  possessory  interest  given  him  as  bailee, 
and  his  right  to  the  possession  ceases  whenever  he  is  guilty  of 
fraud  or  bad  faith,  or  any  misuse  of  the  property.  The  rela- 
tion is  such  that  should  the  bailee,  with  intent  to  deprive  the 
bailor  of  his  property,  and  without  his  consent,  convert  the 
same  to  his  own  use,  he  would  be  guilty  of  embezzlement. 

Embezzlement  is  said  to  be  "a  species  of  larcen}'',  and  the 
term  is  applicable  to  cases  of  stealing  by  clerks,  or  carriers,  of 
property  coming  into  their  possession  by  virtue  of  their  em- 
ployment." ^ 

It  will  not  be  necessary  to  discuss  in  extenso  this  question, 
as  it  belongs  more  properly  to  a  treatise  on  criminal  law.  In 
many  of  the  states,  however,  special  statutes  have  been  en- 
acted relating  to  warehousemen  and  like  bailees.  These  stat- 
utes are  somewhat  sweeping  in  their  provisions,  generally  re- 
quiring the  issuing  of  a  receipt  for  the  property  stored  to  the 
bailor,  which  must  bear  the  date  of  its  issuance,  must  state 
from  whom,  and  the  amount  received,  condition,  quality,  etc., 
and  the  terms  and  conditions  of  the  bailment;  that  no  receipt 
shall  be  issued  for  property''  not  actually  stored;  that  no  per- 
son operating  any  warehouse  shall  sell,  incumber,  ship,  trans- 

1106  Ind.  567;  Bottonberg  V.Nixon,     Mich.  421;  Morningstar  v.  Cunning- 
97   Ind.   106;  Sexton  v.  Graham,  53    ham,  110  Ind.  328. 
Iowa,  181;  Ledyard  v.  Hibbard,  48        ^gykes  v.  Tlie  People,  127  111.  111. 

164 


CU.  XI.]  LOOATIO   CUSTODIiE.  [§  212. 

fer,  or  in  any  manner  remove,  or  permit  to  be  shipped,  trans- 
ferred, or  removed  beyond  his  custody  and  control,  any  grain, 
etc.,  for  which  a  receipt  has  been  given  by  him,  whether  re- 
ceived for  storage,  shipping,  grinding,  manufacturing,  or  other 
purposes,  without  the  written  assent  of  the  holder  of  the  re- 
ceipt, and  providing  punishment  for  any  violation  of  these  pro- 
visions. In  Syl^es  v.  People^  the  Illinois  court  discussed  a 
similar  statute.  The  court  say:  "It  cannot  be  doubted  that 
commercial  transactions  are  greatly  facilitated  by  this  transfer 
of  property,  and  the  purpose  of  the  act  was  to  protect  the 
holders  of  such  public  warehouse  receipts  from  imposition  and 
fraud.  The  receipts  are  required  to  be  the  true  representatives 
of  property  actually  in  store  in  the  warehouse,  and  their  issu- 
ance is  prohibited  under  any  other  conditions  or  circumstances. 
If  the  bank,  in  this  case,  as  it  might,  had  put  these  warehouse 
receipts  in  circulation,  an  actual  fraud  would  have  been  com- 
mitted, and  the  evil  intended  to  be  prevented  by  the  statute 
consummated.  By  the  issuance  of  the  receipts  to  the  bank,  it 
was  furnished  with  the  means  of  perpetrating  a  fraud,  and  this 
is  one  of  the  objects  this  statute  sought  to  prevent.  Any  other 
construction  would  open  the  door  to  unlimited  fraud,  and  ren- 
der nugatory  the  protection  attempted  to  be  afforded  to  trans- 
actions through  the  public  warehouses  of  the  state  by  the 
statute. 

"It  follows  that,  as  touching  the  question  of  the  guilt  or  in- 
nocence of  the  defendant,  the  intent  with  which  the  receipts 
were  issued  by  hira  was  immaterial.  The  intent  necessary  to 
be  found,  to  constitute  this  offense,  related  alone  to  whether 
defendant  intended  to  issue  the  receipt  knowing  it  to  be  false. 
Thus  far  the  common-law  doctrine,  that  every  criminal  offense 
consists  of  the  joint  operation  of  act  and  intent,  enters  into  and 
must  be  considered  as  applying  to  statutory  offenses,^ 

M27  111.  117;  McCutcheon  v.  Peo-  his  control,  for  which  he  had  given 
pie.  69  111.  001;  State  v,  Morse,  53  a  receipt,  leaving  the  receipt  out- 
Iowa.  509.  standing,  he  was  criminally  liable 

'■^Bishop's  Statutory   Crimes,  351-  under  a  similar  statute,  although  the 

361:  Gardner  v.  People,  63  N.  Y.  399;  grain  was  so  shipped  with  the  knowl- 

Halsted  v.  State,  41  N.  J.  L.  553.   The  edge  and  without  objection  by  the 

supremecourtof Iowa, instate v.Ste-  holder  of  the  receipt.      The  court 

venson,  53  Iowa,  701,  held  that  where  said;  "  It  is  evident  from  this  whole 

a  warehouseman  sliipped  grain  out  of  section  that  it  is  for  the  protection 

165 


§§  213-215.]  ORDINARY   BAILMENTS.  [PART    T. 

"If  such  receipts  were  issued  by  the  defendant,  he  knowing 
that  the  property  therein  represented  was  not  in  fact  in  store 
as  therein  designated  and  described,  the  crime  created  by  this 
section  of  the  statute,  as  it  relates  to  the  issuance  of  such  re- 
ceipts, was  committed.  As  before  stated,  it  is  immaterial 
whether  the  defendant  intended  a  fraud  upon  the  bank  or 
other  persons,  if  in  fact  his  act  knowingly  committed  was 
within  the  prohibition  of  the  statute." 

§  213.  Termination. —  The  letting  of  custody  for  hire  being 
the  object  of  this  class  of  bailments,  it  will  be  seen  that  the 
relation  can  be  determined  at  the  will  of  the  bailor,  and  by 
paying  for  the  custody.  So  the  bailee  must  at  all  times  upon 
reasonable  demand  and  notice  be  ready  to  deliver  the  property, 
for  the  purpose  of  the  bailment  has  then  been  accomplished. 

The  relation  may  also  be  terminated  in  the  several  ways 
that  have  already  been  discussed,  as  (a)  by  operation  of  law, 
as  where  the  bailee  becomes  the  owner  of  the  property,  by 
death  of  the  parties,  unless  it  be  of  such  a  nature  that  the  per- 
sonal representatives  can  carry  out  the  bailment;  (J)  by  loss 
or  destruction  of  the  property,  when  there  could  no  longer  be 
any  subject  of  the  bailment;  (<?)  by  mutual  consent;  and  {d)  by 
the  wrongful  acts  of  the  bailee,  as  by  misuse  of  the  property 
or  neglect  to  give  it  proper  care.^ 

§  214-.  Conversion. —  It  is  not  necessary  to  again  discuss 
the  question  of  conversion,  it  having  already  been  sufficiently 
treated  .2 

§  215.  Compensation  —  Lien. —  This  bailment  is  one  of  the 
hiring  bailments,  and  the  bailee,  for  the  custody  and  care  be- 

of  the  community  as  well  as  the  pro-  of  perpetrating  a  fraud,  which  it  is 

tection  of  the  holder  of  the  voucher,  one  of  the  objects  of  the  statute  to 

It  is  clear  that  Petrie  (such  holder),  prevent." 

in  this  case,  with  the  receipt  in  his  i  In  Cobb  v.  Wallace,  5  Cold, 
possession,  might  perpetrate  a  fraud  (Tenn.)  539,  the  court  held  that  the 
upon  third  parties,  the  grain  not  bailee  is  bound  to  return  the  prop- 
being  stored  with  the  defendant  as  erty  upon  reasonable  notice.  Bailey 
stated  in  the  receipt.  The  defend-  v.  Colby,  34  N.  H.  29,  That  sale  by 
ant  could  not,  innocently,  under  the  bailee  terminates,  Dunlap  v.  Glea- 
statute,  with  such  a  receipt  outstand-  son,  16  Mich.  158;  Negus  v.  Simpson, 
ing,  ship  the  wheat  beyond  his  con-  99  Mass.  388;  Morse  v.  Crawford,  17 
trol,  even  in  the  presence  of  Petrie  Vt.  499. 
and  with  his  verbal  assent.  Such  an  '^  Ante,  §  64. 
act  would  furnish  Petrie  the  means 

166 


en.  XI.]  LOCATIO    CUSTODI^.  [§  215. 

stowed,  is  entitled  to  compensation.  This  compensation  is 
usually  fixed  by  the  contract,  from  usage  and  custom  well 
understood,  or  by  the  reasonable  charges  of  the  bailee.  For 
the  payment  of  this  compensation  the  bailee  has  a  common-law 
lien  upon  the  subject  of  the  bailment.  This  lien  is  a  special  lien 
and  not  a  general  one;  a  lien  upon  the  goods  or  property  that 
he  has  cared  for — that  have  been  and  are  within  his  control. 
The  general  principles  governing  this  lien  have  been  so  fully 
stated  that  we  will  not  again  discuss  them. 

167 


PAET  seoo:n"d 


PLEDGE  OR  PAWN 


CHAPTER  I. 


THE  RELATION. 


§216. 
217. 
218. 
219. 
220. 
221. 

223. 

223. 

224. 
225. 

226. 
237. 

228. 

229. 
230. 
231. 

232. 


Pignus. 

The  scope  of  the  business. 

Definition. 

Some  essentials. 

Competent  parties. 

There  must  be  assent  of  the 

parties. 
Corporations,     partnerships, 

agencies. 
Property  the  subject  of  the 

pledge. 
Corpoi-eal  or  incorporeal. 
Property  not  in  existence  or 

acquired. 
Exceptions. 
Exempt  property    may    be 

pledged. 
Pensions  and  pay  to  officers 

and  soldiers. 
The  debt  or  engagement. 
Pledge  as  collateral  security. 

Contract  should  specify 

debt  secured. 

Pledge  may  be  to  secure 

past,  present  or  future  in- 
debtedness. 


§  233. 


234. 


235. 


236. 


337. 


237a, 


238. 

239. 
240. 


The  pledgor  may  pledge 

his  property  to  secure  the 
debt  of  another. 

As    to     holding    proi> 

erty  for  former  or  another 
debt. 

Continuing  security  — 

Future  transactions. 

When  several  debts  — 

Applications  of  payment. 

A  pledge  which  secures 

a  debt  bearing  interest  se- 
cures the  interest  as  well  as 
the  debt. 

Delivery  of  the  property  by 
the  pledgor  —  Acceptance 
and  continued  possession 
of  the  property  by  the 
pledgee. 

If  property  not  delivered  — 
Pledge,  when  good. 

The  delivery. 

Constructive  or  symbolical 
delivery. 


§  216.  Pignus. —  This  class  of  bailments  belongs  to  the  gen- 
eral class  of  benefit  bailments,  that  is,  bailments  for  the  benefit 
of  both  parties,  and  in  the  Roman  classification  caWed  2?i(/7ius. 

Pignus  is  a  Latin  word  and  signifies  pledge;  the  deposit  of 
the  thing,  or  the  transfer  of  the  possession  of  it,  or  dominion 
over  it  as  security  for  the  performance  of  an  obligation.     "  The 

169 


§   210.]  PLEDGE    OR    PAWN,  [PART    II. 

essential  idea  in  the  Homan  and  civil  law  is  the  putting  of 
property,  whether  of  a  chattel  or  land,  or  territorial  jurisdic- 
tion (or  servants  or  children  when  they  are  regarded  as  prop- 
erty), under  the  hand  of  the  creditor  or  pledgee  as  security,  so 
that,  although  the  right  of  the  owner  was  not  extinguished, 
the  creditor  or  pledgee  could  enforce  his  claim  without  legal 
proceedings,  or  no  effort  to  gain  possession ;  and  this  is  also  the 
essential  idea  inpaivn  and  also  in  the  strict  use  of  pledge ;  while 
liypotliea  and  mortgage  imply  that  the  owner  retains  possession 
and  that  the  creditor  has  only  the  right  of  action,  or  a  right 
to  demand  possession  in  the  contingencies  agreed  on."^ 

It  is  suggested  by  some  of  the  writers  upon  this  subject  that 
a  pledge  is  of  more  modern  application,  and  has  a  different 
and  broader  significance  than  the  terra  "  pawn,"  or  the  business 
of  pawning;  that  at  an  early  day  the  business  was  not  known 
by  the  term  "  pledge,"  but  was  rather  confined  to  that  of  pawn- 
ing of  personal  effects,  and  did  not  embrace  the  larger  transac- 
tions of  modern  business,  but  was  limited  to  the  personal  pawn- 
ing of  personal  articles  of  adornment  and  use.  It  is  true  the 
subject  generally  suggests  the  three  golden  balls  and  a  show 
window  of  some  little  office  filled  with  jewelry,  watches,  dia- 
monds, bank-bills,  gold  and  silver  money  displayed  to  lure  the 
poor  unfortunate  who  must  realize  a  small  sum,  to  step  inside 
and  leave  what  valuables  he  has  left,  and  take  away  a  pittance 
at  a  large  rate  of  interest. 

But  to-day  this  is  a  very  small  part  of  the  business  embraced 
by  the  subject  we  have  in  hand.  Year  by  year  has  added  to 
the  great  volume  of  business  that  is  now  included  in  this  class 
of  bailments.  As  the  business  world  has  advanced,  as  the  age 
of  invention  and  improvement  has  more  or  less  taken  posses- 
sion of  the  pecuniary  interests  of  mankind,  larger  demands 
have  been  made  and  met  along  the  line  of  loans  and  securities^ 
and  from  the  once  small  and  somewhat  unpopular  business  of 
the  pawnbroker  a  new  and  larger  business  has  emanated,  tak- 
ing on  new  and  more  respectable  habiliments.  And  while  the 
same  golden  balls  allure  the  unfortunate  to  deposit  his  few 
personal  jewels  and  adornments,  this  other  and  more  respected 
business  has  grown  into  existence  and  flourishes  under  a  differ- 
ent name,  and  is  patronized  by  larger  business  interests.    Kow 

1  Century  Dictionary. 
170 


Uil.   I.]  THE    RKLATION.  [§§  217-219. 

we  have  not  only  the  pawnbroker,  but  the  loan  and  security 
companies,  bank  and  trust  companies,  rich  corporations  and 
individuals  who  become  pledgees,  holding  the  personal  chat- 
tels of  individual  business  men  and  as  well  of  great  corpora- 
tions, so  that  the  relation  of  pledge  and  pawn  has  come  to  be 
an  important  factor  in  the  modern  business  world. 

§  217.  The  scope  of  the  business. —  The  scope  of  the  business 
can  hardly  be  described.  Beside  the  little  pawn  shop  which 
deals  in  the  few  little  parcels  of  property,  with  but  a  small 
amount  of  capital  invested,  may  be  found  the  banking  houses 
of  immense  capital,  holding  within  its  vaults,  as  security  for  its 
immense  loans,  bonds  and  securities  of  great  amount  and  value, 
so  that  the  relation  of  pledge  and  pawn  embraces  a  great  scope 
and  variet}''  of  business  and  business  relations.  Not  only  is  it 
confined  to  the  public  institutions  like  pawnbrokers'  offices, 
the  banking  institutions,  the  loan  and  security  companies,  but 
it  also  embraces  a  large  amount  of  private  transactions  where, 
property  is  left  by  one  individual  with  another  as  security  for 
the  payment  of  his  debt,  or  for  the  performing  of  his  obligation, 

§  218.  Definition. —  A  pledge  or  pawn  may  be  defined  to  be 
a  bailment  of  personal  property  as  securit}'^  for  the  payment  of 
a  debt  or  the  performing  of  an  obligation.  Lord  Holt  ^defines 
it:  "When  goods  or  chattels  are  delivered  to  another  as  a 
pawn  to  be  security  for  money  borrowed  of  him  by  ths  bailor." 
Sir  William  Jones  -  defines  a  pledge  to  be  "  a  bailment  of  goods 
by  a  debtor  to  his  creditor  to  be  kept  till  the  debt  is  discharged." 
Mr.  Hale  '  defines  a  pledge  or  pawn  to  be  "  a  bailment  to  secure 
the  payment  of  a  debt  or  the  performance  of  an  engagement 
accompanied  by  a  power  of  sale  in  case  of  default." 

The  definition  of  Hale  seems  to  be  the  most  comprehensive, 
and  we  have  adopted  it  as  the  most  satisfactory. 

§  219.  Some  essentials. —  From  the  definition  itself  it  will 
be  observed  that  there  are  certain  essentials  to  a  pledge  or 
pawn,  which  from  the  very  nature  of  the  relation  are  indis- 
pensable. 

(1)  There  must  be  competent  parties. 

(2)  Property  the  subject  of  the  pledge  or  bailment. 

(3)  Debt  or  engagement. 

1  Coggs  V.   Bernard,   2  Lord  Ray-        2  .Jones,  Bailments,  sec.  35. 
mond,  909-913.  3  Hale,  Bailments,  sec.  25. 

171 


§§  220,  221.]  PLEDGE    OE    PAWN.  [PART    II. 

(4)  Delivery  of  the  property  b}'^  the  pledgor;  and 

(5)  Acceptance  and  continued  possession  of  the  property  by 

the  pledgee. 

To  these  several  essentials  necessary-for  the  establishment 
and  continuance  of  the  relation  we  turn  our  attention. 

§  220.  Competent  parties. —  The  relation  is  one  of  contract, 
and  so  the  requirements  as  to  competency  of  parties  are  the 
same  as  in  contracts.  The  parties  must  be  competent  to  enter 
into  a  contract  relation,  and  the  same  disabilities  that  preclude 
certain  persons  from  becoming  parties  to  a  contract  apply  to 
their  assuming  this  relation. 

X  At  common  law,  infants,  married  women,  lunatics,  drunkards 
and  idiots  were  held  to  be  incompetent  to  enter  into  contract 
relations;  but  while  the  general  rule  would  exclude  these 
classes,  there  are  exceptions  to  this  rule.  As^  for  example,  in- 
fants msiv  be  allowed  to  contract  for  necessaries;  and  so  may 
married  women  ;^  a  drunkard  when  not  so  much  under  the  in- 
fluence of  intoxicants  as  to  deprive  him  of  his  competency  to  do 
business;  a  lunatic  while  enjoying  a  lucid  interval.  And  so 
statutes  in  several  of  the  states  have  given  to  married  women 
the  right  to  deal  with  their  own  separate  property  and  to  make 
contracts  with  reference  to  it.  This  would  include  a  contract 
for  the  pledging  of  the  same,  but  in  such  case  it  would  be  neces- 
sary to  show  that  the  contract  of  pledging  was  with  reference 
to  her  separate  property. 

All  this  has  been  discussed  in  a  former  chapter,^  and  it  will 
not  be  necessary  to  here  repeat  it, 

§  221.  There  must  be  assent  of  the  parties. —  It  goes  with- 
out saying  that  a  contract  to  be  valid  should  be  entered  into 
by  consent  of  the  parties,  and  if  the  assent  of  the  parties  can- 
not be  legally  shown,  there  can  be  no  pledge;  and  so,  if  con- 
sent is  obtained  by  fraud,  or  duress,  or  misrepresentation,  it 
will  vitiate  the  contract  and  the  pledge  will  not  be  binding 
upon  the  parties. 

In  the  case  of  Head  v.  Bunn^  it  was  held  that  a  pledge  ob- 
tained by  fraudulent  false  representation  was  void,  and  though 
unredeemed  by  the  debtor  it  vested  no  interest  in  the  pledgee; 

1  Campbell  v.  White,  22  Mich.  178:        2  Ante,  %%  'l3-16. 
Chamber  of  Commerce  v.  Goodman,        3  32  N.  Y.  275. 
110  Mich.  501,  and  cases  cited. 

173 


CH.  T.]  THE   RELATION.  [§  222. 

that  it  was  void  in  the  law.  "  Every  contracting  party  has 
an  absolute  right  to  rely  upon  the  express  statement  of  an  ex- 
isting fact,  the  truth  of  which  is  known  to  the  opposite  party, 
and  unknown  to  him,  as  the  basis  of  a  mutual  agreement." 

"  A  contract  obtained  b}''  fraud,  though  perfect  in  form,  is 
void  in  law ;  the  return  of  fair  and  free  consent  is  essential  to 
the  validity  of  every  mutual  agreement.  The  homely  maxim 
'honesty  is  the  best  policy  '  is  nowhere  more  firmly  rooted  and 
grounded  than  in  the  foundation  of  our  civil  jurisprudence. 
'No  man  can  safely  rest  on  a  title  acquired  through  his  own 
deliberate  wrong."  .  .  .  "  It  is  not  necessary  to  question 
whether  the  extortionate  terms  of  the  pledge  rendered  it  void 
as  contra  lonos  mores,  and  opposed  to  public  policy,  for  the 
agreement  was  fatally  tainted  in  its  inception,  and  it  was  no 
sooner  completed  between  the  parties  than  it  was  annulled  by 
operation  of  law."  The  maxim  that  fraud  "  vitiates  all  con- 
tracts" is  applicable  here. 

§  222.  Corporations,  partnerships,  agencies. —  A  corpora- 
tion being  a  legal  entity  capable  of  holding  and  owning  prop- 
erty, recognized  in  the  law  as  a  person,  may  ho  a  valid  party 
to  a  pledge  as  pledgor  or  pledgee  whenever  the  transaction  is 
within  the  scope  of  its  corporate  authority.  So  a  partnership 
being  recognized  in  the  law  as  a  concern  able  to  do  business, 
to  own  and  possess  property,  is  competent  to  be  either  a 
pledgor  or  a  pledgee  of  property  whenever  the  pledge  is  made 
within  the  scope  of  the  partnership  authority.  If,  however, 
the  property  should  be  pledged,  though  generally  within  the 
scope  of  the  business  of  the  concern,  if  it  should  appear  that  it 
was  an  unusual  proceeding,  it  would  be  looked  upon  by  the 
court  with  some  degree  of  suspicion.  The  pledge  must  be  for 
the  benefit  of  the  concern;  that  is,  for  the  corporation  or  co- 
partnership; and  if  it  should  appear  that  it  was  pledged  to 
secure  the  individual  indebtedness  of  one  of  the  partners,  or  of 
one  of  the  directors  of  the  corporation,  it  would  be  held  void 
as  against  the  creditors  of  the  concern.  Such  action  would  be 
beyond  the  scope  of  the  authority  of  a  partner  or  individual 
member  of  a  corporation. 

An  agent  may,  acting  within  the  scope  of  his  authority, 
make  his  principal,  if  the  principal  is  competent  to  be  a  party  to 
the  relation,  either  a  pledgor  or  pledgee,  as  the  particular  busi- 

173 


§§  223,  224.]  PLEDGE    OK    PAWX  "        [part    II. 

ness  may  demand;  but  here  the  rules  of  agency  will  be  in- 
voked —  the  agent  must  have  authority  to  act  in  that  regard. 
If  he  is  a  general  agent,  and  it  is  along  the  line  of  his  duty  as 
such  general  agent,  he  would  not  need  to  have  special  authori- 
zation from  the  principal.  The  maxim  that  obtains  in  the  law 
of  agency  obtains  here:   Qui facit per  alium facit per  se. 

§  223.  Property  the  subject  of  the  pledge. —  Every  kind  of 
property,  whether  corporeal  or  incorporeal,  if  capable  of  trans- 
fer by  deliver}"  of  the  thing  itself,  or  by  assignment  of  the  evi- 
dence of  ownership,  may  be  the  subject  of  the  pledge  or  pawn. 
The  property  must  be  personalty;  real  property  is  not  the  sub- 
ject of  a  pledge. 

§  224.  Corporeal  or  incorporeal. —  Formerly  the  relation 
of  pledge  or  pawn  was  confined  to  corporeal  personalty,  as 
articles  of  jewelry,  wearing  apparel,  domestic  animals,  and 
such  like  personal  property,  and  did  not  include  personalty 
that  is  ordinarily  denominated  and  known  as  incorporeal  per- 
sonalty, such  as  shares  of  stock,  debts,  negotiable  and  non- 
negotiable  paper,  choses  in  action,  and  the  like.  The  courts 
proceeded  upon  the  theory  that  such  property  could  not  be  de- 
livered in  tile  way  the  law  required  property  to  be  delivered 
in  order  to  create  a  pledge. 

In  the  case  of  Wilson  v.  Little  ^  this  question  was  discussed, 
and  the  court  there  announced  the  doctrine,  which  has  been 
the  doctrine  ever  since,  that  incorporeal  personalty  may  be  the 
subject  of  a  pledge.  In  that  case  the  court  say:  "The  argu- 
ment of  the  defendant  in  this  case  is  founded  on  the  assumption 
that  when  personal  things  are  pledged  for  the  payment  of  a 
debt,  the  general  property  and  the  legal  title  always  remain 
in  the  pledgor;  and  that  in  all  cases  where  the  legal  title  is 
transferred  to  the  creditor  the  transaction  is  a  mortgage  and 
not  a  pledge.  This,  however,  is  not  invariably  true.  But  it  is 
true  that  possession  must  uniformly  accompany  a  pledge.  The 
right  of  the  pledgee  cannot  otherwise  be  consummated.  And 
on  this  ground  it  has  been  doubted  whether  incorporeal  things 
like  debts,  money  in  stocks,  etc.,  which  cannot  be  manually  de- 
livered, were  the  proper  subjects  of  a  ])ledge.  It  is  now  held 
that  they  are  so;  and  there  seems  to  be  no  reason  why  any 
legal  or  equitable  interest  whatever  in  personal  property  may 

13N.  y.  443. 
174 


C!IT.  I.]  THE    RELATION.  [§§  225,  22G. 

not  be  pledged,  provided  the  interest  can  be  put,  by  actual  de- 
liv^ery  or  by  written  transfer,  into  the  hands  or  within  the 
power  of  the  pledgee,  so  as  to  be  made  available  to  him  for  the 
satisfaction  of  the  debt.  Goods  at  sea  may  be  passed  in  pledge 
by  a  transfer  of  the  muniments  of  title,  as  by  a  written  assign- 
ment of  the  bill  of  lading.  This  is  equivalent  to  actual  posses- 
sion, because  it  is  a  delivery  of  the  means  of  obtaining  possession. 
And  so  debts  and  choses  in  action  are  capable,  by  means  of  a 
written  assignment,  of  being  conveyed  in  pledge." 

In  Stewart  v.  Lansing  ^  the  subject  of  the  pledge  was  coupon 
bonds  issued  by  a  township  to  a  railroad  company;  and  in 
Penny  v.  Zynn^  it  was  a  lease  of  real  estate  which  was  pledged 
as  collateral  security  for  the  payment  of  a  promissory  note. 

§  225.  Property  not  in  existence  or  not  acqnired. —  It  is  a 
general  rule  that  property  not  in  existence,  or  not  yet  acquired, 
cannot  be  the  subject  of  a  pledge,  for  the  reason  that  it  cannot 
be  delivered  by  the  pledgor  to  the  pledgee,  and  delivery,  as  we 
shall  see,  is  a  requisite  to  a  valid  pledge.  The  courts,  however, 
have  held  that  where  a  contract  to  pledge  has  been  made,  and 
the  contract  cannot  be  carried  out  by  reason  of  this  general 
rule,  the  agreement  would  attach  to  the  property  as  soon  as  it 
is  produced  or  comes  into  the  ownership  or  possession  of  the 
pledgor;  and  it  may  be  said  that  in  case  of  failure  of  the 
pledgor  to  carry  out  the  contract  to  pledge,  an  action  would 
lie  for  whatever  damages  the  pledgee  may  have  suffered  by 
reason  of  it.  This,  however,  is  more  in  the  nature  of  a  contract 
to  pledge,  and  can  hardly  be  held  to  be  a  pledge  in  the  full 
meaning  and  extent  of  that  relation. 

§  226.  Exceptions. —  But  to  the  general  rule  above  men- 
tioned there  are  exceptions.  Where  property  has  a  potential 
existence  and  the  pledgor  has  a  potential  interest  in  it,  it  may 
be  the  subject  of  a  pledge  or  pawn.  It  is  not  enough  that  the 
pledgor  should  have  a  possibility  or  expectancy  of  acquiring 
the  property;  it  must  be  a  present  interest  in  the  property  of 
which  the  thing  pledged  is  the  product,  growth  or  increase. 
For  example,  the  owner  of  a  flock  of  sheep  may  pledge  the 
wool  to  be  grown  on  his  sheeo  during  the  year,  but  he  cannot 

1104U.  S.  505.  667;  Schouler's  Bailments,  sec.  173; 

2  58  Minn.  371,  59  N.  W.  1043;  Mor-  Sinker,  Davis  &  Co.  v.  Green,  135  Ind. 
ris  Canal  Co.  v.  Fisher,  9  N.  J.  Eq.     434,  35  N.  E.  263,  16  Fed.  334. 

175 


§  22G.] 


PLEDGE    OR    PAWN. 


[PAKT   II. 


pledge  the  wool  to  be  grown  upon  the  sheep  of  another  per- 
son, or  upon  sheep  which  he  expected  to  purchase,  or  of  which 
he  probably  would  come  into  the  possession.  So  the  crops  to 
be  grown  upon  his  own  land  may  be  the  subject  of  a  pledge 
by  the  pledgor,  but  not  crops  on  the  lands  of  another,  unless 
the  pledgor  has  a  present  interest  in  the  land  and  the  crop. 
This  is  upon  the  theory  that  in  the  natural  course  of  events  the 
property  pledged  will  be  produced  as  the  property  of  the 
pledgor.  As  in  case  of  the  wool  to  be  grown  upon  the  sheep 
owned  by  the  pledgor,  in  the  natural  course  of  events  the  wool 
will  grow  and  will  be  the  property  of  the  pledgor.^ 


^Low  V.  Pew,  108  Mass.  347;  Jones 
V.  Richardson,  10  Mete.  481:  Bellows 
V.  Wells,  36  Vt.  599;  Van  Hoozer  v. 
Corey,  34  Barb.  9.  In  Low  v.  Pew, 
108  Mass.  347,  the  court  used  this  lan- 
guage: "It  is  an  elementary  princi- 
ple of  the  law  of  sales  that  a  man  can- 
not grant  personal  property  in  which 
he  has  no  interest  or  title.  To  be 
able  to  sell  property  he  must  have 
a  vested  right  in  it  at  the  time  of  the 
sale.  Thus,  it  has  been  held  that  a 
mortgage  of  goods  which  the  mort- 
gagor does  not  own  at  the  time  the 
mortgage  is  made,  though  he  after- 
wards acquires  them,  is  void.  Jones 
V.  Richardson.  10  Met.  481.  The  same 
principle  is  applicable  to  all  sales  of 
personal  pi'operty.  Rice  v.  Stone,  1 
Allen,  566,  and  cases  cited;  Head  v. 
Goodwin,  37  Me.  181.  It  is  equally 
well  settled  that  it  is  suflBcient  if  the 
seller  has  a  potential  interest  in  the 
thing  sold.  But  a  mere  possibility 
or  expectancy  of  acquiring  property, 
not  coupled  with  any  interest,  does 
not  constitute  a  potential  interest  in 
it  within  the  meaning  of  this  rule. 
The  seller  must  have  a  present  inter- 
est in  the  property  of  which  the  thing 
sold  is  the  product,  growth  or  in- 
crease. Having  such  interest,  the 
right  to  the  thing  sold,  when  it  shall 
come  into  existence,  is  a  present 
vested  right,  and  the  sale  of  it  is 
valid.  Thus,  a  man  may  sell  the  wool 


to  grow  upon  his  own  sheep,  but  not 
upon  the  sheep  of  another;  or  the 
crops  to  grow  upon  his  own  land,  but 
not  upon  land  in  which  he  has  no  in- 
terest. The  same  principles  have 
been  applied  by  this  court  to  the  as- 
signment of  future  wages  or  earn- 
ings. In  Mulhall  v.  Quinn,  1  Gray, 
105,  an  assignment  of  future  wages, 
there  being  no  contract  of  service, 
was  held  invalid.  In  Hartley  v.  Tap- 
ley,  2  Gray,  565,  it  was  held  that,  if 
a  x>erson  is  under  a  contract  of  serv- 
ice, he  may  assign  his  future  earn- 
ings growing  out  of  such  contract. 
The  distinction  between  the  cases  is, 
that  in  the  former  the  future  earn- 
ings are  a  mere  possibility,  coupled 
with  no  interest,  while  in  the  latter 
the  possibility  of  future  earnings  is 
coupled  with  an  interest,  and  the 
right  to  them,  though  contingent 
and  liable  to  be  defeated,  is  a  vested 
right.  In  the  case  at  bar,  the  sellers, 
at  the  time  of  the  sale,  had  no  interest 
in  the  thing  sold.  There  was  a  possi- 
bility that  they  might  catch  halibut, 
but  it  was  a  mere  possibility  and  ex- 
pectancy, coupled  with  no  interest. 
We  are  of  opinion  that  they  had  no 
actual  or  potential  possession  of  or 
interest  in  the  fish;  and  that  the  sale 
to  the  plaintiffs  was  void.  The  plaint- 
iffs rely  upon  Gardner  v.  Hoeg.  18 
Pick.  168,  and  Tripp  v.  Brownell.  12 
Gush.  376.     In  both  of  these  cases  it 


176 


CH.  I.]  THE    KELATION.  [§  227. 

Natural  increase. — The  pledge  of  the  property  would  carry 
with  it  the  natural  increase  of  the  pledged  property.  As,  for 
example,  if  the  property  were  coupon  bonds,  the  pledgee  would 
have  the  right  to  collect  the  coupons  as  they  matured,  and  ap- 
ply the  amount  upon  the  indebtedness;  or  if  it  were  a  mort- 
gage or  note,  to  collect  the  interest  upon  them  as  it  accrued; 
or  if  it  were  animals,  the  increase  born  during  the  time  of 
the  possession  of  the  pledgee  would  be  held  subject  to  the 
pledge,  and  become  a  part  of  the  pledged  property;  the  rule 
being  that  "  the  increase  follows  its  dam." 

§  227.  Exempt  property  may  be  pledged. —  By  the  statutes 
of  most  of  the  states,  if  not  of  all,  certain  property  is  declared 
to  be  exempt  from  execution,  and  the  courts  have  been  very 
jealous  of  the  rights  given,  by  reason  of  these  exemptions ;  as^ 
for  example,  the  exempting  of  food  and  provisions  sufficient  to 
keep  the  family  for  six  months,  the  two  cows,  the  ten  sheej), 
the  team  and  vehicle  for  carrying  on  the  business  of  the  debtor 
if  engaged  in  business  requiring  such  property.  These  exemp- 
tions have  been  considered  as  humane  and  just.  Of  course 
the  property  exempted  differs  in  different  states;  nevertheless 
the  owner  of  this  property  is  at  liberty  to  dispose  of  it,  and  so 
may  pledge  it  for  debts;  some  of  the  states  requiring,  how- 
ever, where  it  is  pledged  or  mortgaged,  that  the  instrument 
creating  the  pledge  or  mortgage  shall  be  signed  by  the  wife  if 
the  property  is  owned  by  a  married  man. 

In  Front  v.  Shaw  ^  the  plaintiff  commenced  suit,  claiming  that 
certain  property  sold  was  exempted  by  law  from  execution. 
The  property  had  been  pledged  to  secure  the  payment  of  a 
promissory  note;  default  had  been  made  in  the  payment,  judg- 
ment was  taken  on  the  note,  and  the  property  levied  upon  and 
sold.  In  the  opinion  Bartlett,  J.,  says:  "  Although  the  humane 
provisions  of  law  exempting  certain  articles  of  necessity  from 
execution  for  the  payment  of  debts  may  be  entitled  to  a  lib- 
eral construction,  the  general  principles  which  govern  the  right 

was  held  that  the  lay  or  share  in  the  cles  would  become  due  to  the  sea- 
profits,  which  a  seaman  in  a  whaling  man  from  the  owners  at  the  end  of 
voyage  agreed  to  receive  in  lieu  of  the  voyage.  The  court  treated  them 
wages,  was  assignable.  The  assign-  as  cases  of  assignments  of  choses  in 
ment  in  each  case  was,  not  of  any  action." 
part  of  the  oil  to  be  made,  but  of  the  1 3  Ohio  St.  270. 
debt  under  whicli  the  shipping  arti- 

12  177 


§  228.]  PLEDGE    OR    PAWN.  [PART    II. 

of  private  property  are  not  to  be  overlooked.  The  owner  of 
the  chattels  exempted  from  execution  is  not  divested  of  the 
right  of  disposing  of  the  property  himself,  either  by  sale  or  by 
pledge,  in  security  for  the  payment  of  his  debts,  and  in  case 
of  the  pledge  of  a  chattel  mortgage  the  owner  clearly  waives 
the  benefit  of  the  exemption  so  far  as  the  incumbrance  extends 
or  is  operative." 

§  228.  Pensions  and  pay  to  officers  and  soldiers. —  From 
time  immemorial  it  has  been  held  by  the  courts,  on  the  ground 
of  public  policy,  that  emoluments  of  officers  and  soldiers,  in- 
cluding pensions  to  discharged  soldiers,  should  be  exempted 
from  pledge,  or  pawn,  or  sale  on  execution. 

The  English  courts  afford  many  examples  of  the  exemption 
of  pay  to  officers,  though  in  some  cases  they  have  held  that  by 
procedure  in  chancery  the  money  might  be  reached.  In  an 
early  case,  McCarthy  v.  Gould^  the  chancellor  says:  "It  has 
been  decided  both  at  law  and  in  equity  that  the  half-pay  of  an 
officer  is  not  assignable  or  attachable,  on  principles  of  public 
policy.  In  the  case  of  Stone  v.  Zidderdale,  the  reason  given 
was  that  he  might  be  forthcoming  when  his  services  are  re- 
quired;  but  Lord  Chief  Baron  McDonald,  in  his  judgment, 
makes  a  distinction  between  the  case  of  a  half-pay  officer  and 
of  a  pension  granted  to  an  individual.  In  this  case  the  grant- 
ing of  the  pension  was  to  Lord  Westmeath  and  his  assigns. 
He  has  assigned  it  to  the  defendant,  who  is  in  the  receipt  of  it, 
and  payment  is  made  to  him  on  his  receipt.  It  is  not  a  chose 
in  action,  but  a  grant,  and  may  be  reached  by  the  process  of 
this  court,  and  the  proper  mode  of  eifecting  this  is  by  restrain- 
ing the  defendant  from  receiving  his  pension  and  directing  the 
sequestrators  to  receive  the  same  at  the  treasury  without  serv- 
ing any  order  on  the  lord  of  the  treasury  for  that  purpose." 

In  the  United  States,  not  only  has  it  been  considered  against 
public  policy  not  to  protect  the  pension  certificates  of  the  sol- 
diers from  sale,  pledge,  or  execution,  but  the  congress  of  the 
United  States  has  passed  a  statute  regulating  the  subject." 

1  Ball  &  Beatty's  Rep.  389;  Lidder-  in  any  pension  which  has  been  or 
dale  V.  Montrose,  4  Term  R  248.  may  hereafter  be  granted,  shall  be 

2  R.  S.  U.  S.,  sec.  4745.  "  Any  pledge,  void  and  of  no  effect ;  and  any  person 
mortgage,  sale,  assignment,  or  trans-  acting  as  attorney  to  receive  and  re- 
fer of  any  right,  claim,  or  interest  ceipt  for  money  for  and  in  behalf  of 

178 


CH.  I.]  THE    EELATION.  [§  229. 

§  229.  The  debt  or  engagement. —  It  is  essential  to  every 
valid  contract  that  it  should  be  supported  by  a  consideration; 
so  the  contract  creating  this  relation  must  be  supported  by  a 
consideration.  The  debt  or  agreement  which  the  pledgor 
seeks  to  secure,  furnishes  a  consideration  upon  the  part  of  the 
pledgee  to  support  the  pledge.  This  consideration,  in  order  to 
support  the  contract,  must  of  necessity  be  a  valid  one.  It  there- 
fore follows  that  the  debt  or  engagement  that  is  sought  to  be 
secured  must  be  valid,  and  if  it  be  an  illegal  debt,  or  the  en- 
gagement be  illegal  or  against  public  policy  or  good  morals, 
the  consideration  for  the  pledge  will  fail. 

In  Taylor  v.  Chester^  the  plaintiff  deposited  with  defendant 
the  half  of  a  50^.  bank-note  by  way  of  pledge  to  secure  the 
payment  of  money  due  from  the  plaintiff  to  the  defendant. 
The  debt  was  contracted  for  wine  and  suppers  supplied  to  the 
plaintiff  by  the  defendant  in  a  brothel  kept  by  her,  to  be  there 
consumed  in  a  debauch,  the  plaintiff  having  brought  action  to 
recover  the  half  note.  Held,  that  the  maxim  in  jjari  delioto 
potior  est  conditio  possidentis  applied,  and  that  the  plaintiff 
could  not  recover  without  showing  the  true  character  of  the 
deposit,  and  that  being  an  illegal  consideration,  to  which  he 
himself  was  a  party,  he  was  precluded  from  obtaining  the  as- 
sistance of  the  law  to  recover  it  back. 

It  is  also  said  in  Chitty  on  Contracts,  "Whenever  the  con- 
tract which  the  parties  seek  to  enforce,  be  it  express  or  im- 
plied, is  expressly  or  by  implication  forbidden  by  the  common 
or  the  statute  law,  no  court  will  lend  its  assistance  to  give  it 

any  person  entitled  to  a  pension  shall,  tificate  issued  to  the  plaintiff,  it  is 
before  receiving  such  money,  take  no  defense  either  legal  or  equitable 
and  subscribe  an  oath  to  be  filed  that  the  plaintiff  left  such  certificate 
with  the  pension  agent,  and  by  him  with  the  defendants  as  security  for 
to  be  transmitted  with  the  vouchers  goods  thereafter  sold  and  delivered 
now  required  by  law,  to  the  proper  by  them  to  him,  relying  on  such  se- 
accountmg  officer  of  the  treasury,  curity,  and  that  there  is  a  balance 
that  he  has  no  interest  in  such  due  to  them  for  such  goods.  Such 
money  by  any  pledge,  mortgage,  sale,  facts  do  not  create  a  lien  in  de- 
assignment  or  transfer,  and  that  he  fendant's  favor  upon  tlie  certificate, 
does  not  know  or  believe  that  the  nor  constitute  a  right  to  any  relief 
same  has  been  so  disposed  of  to  any  in  this  action," 

person."    Motfatt   v.   Van   Doran,  4        IL.  R.  4  Q.  B.  309;  Chitty  on  Con- 

Bosw.  (N.  Y.)  609.     "In  an  action  to  tracts,  579  (6th  ed.). 
recover  possession  of  a  pension  cer- 

179 


§§  230,  231.]  PLEDGE    OR    PAWN.  [PAET   II. 

effect,  .  .  ,  And  the  test  as  to  whether  a  demand  con- 
nected with  an  illegal  transaction  be  capable  of  being  enforced 
at  law  is  whether  the  plaintiff  requires  to  rely  on  such  trans- 
action in  order  to  establish  his  case."  Such  contracts  are  also 
invalid  and  will  be  impeached  on  the  ground  of  public  policy. 

In  Story's  Equity  Jurisprudence  the  doctrine  is  laid  down 
that  where  parties  are  concerned  in  illegal  agreements  or 
other  transactions,  whether  they  are  mala  jproldhita  or  mala 
in  se,  courts  of  equity,  following  the  rule  of  law  as  to  partici- 
pators in  a  common-law  crime,  will  not  interpose  to  grant  any 
relief,  acting  upon  the  well-known  maxim  "  in  part  delicto 
potior  est  conditio  defendentis  et possidentis.''^  ^  It  therefore  fol- 
lows that  the  rule  of  law  is,  that  if  the  consideration  of  the 
debt  for  which  the  property  is  pledged  is  an  illegal  or  immoral 
one,  the  courts  will  not  lend  their  aid  to  secure  such  a  debt^ 
but  will  adopt  the  rule  so  well  settled  in  such  cases,  that  the 
law  will  leave  the  parties  where  it  found  them.  And  so 
if  a  pledgor  voluntarily  delivers  his  property  to  secure  such  an 
immoral  or  illegal  debt,  the  courts  will  not  assist  him  to  re- 
cover his  property  back,  but  will  leave  it  as  the  parties  left  it; 
therefore  it  follows  that  the  pledgor  could  not  recover  the  prop- 
erty until  he  had  paid  the  debt. 

§  230.  Pledge  as  collateral  security, —  Property  is  often 
pledged  as  collateral  security  for  the  payment  of  promissory 
notes  or  other  negotiable  paper,  with  full  power  to  sell  the 
pledged  property  if  default  is  made  in  pa3nng  the  debt.  The 
pledge  may  be  made  to  secure  the  payment  or  obligation  of 
the  pledgor  or  any  other  person.  The  rights,  duties  and  lia- 
bilities of  the  parties  to  such  a  pledge  will  be  discussed  under 
another  head.^ 

§231.  Contract  should  specify  debt  secured. —  The 

contract  or  agreement  creating  the  pledge  should  specify  the 
particular  debt  that  is  to  be  secured.     This  is  important,  as  it 

1  Story's  Eq.  Juris.  298.     In  Biggs        ^  Post,  §  313.     A  liability  for  an- 

V.  Lawrence,  3  T.  R.  454,  it  is  held  other  upon  a  contract  still  in  force 

that  the  plaintiffs  could  not  recover  is  a  sufficient    consideration   for  a 

for  goods  sold    to    the    defendants  pledge,  and  the  ratio  of  the  consid- 

where  they  knew   that  the    goods  eration  to  the  value  of  the  thing 

were  purchased  to  be  smuggled  and  pledged  is  of  no  importance.   Jewett 

they  had  packed  them  for  that  pur-  v.  Warren,  13  Mass.  300. 
pose.   Clugas  v.  Penaluna,  4  T.  R.  466. 

180 


CH.  I.]  THK    RELATION.  [§  232. 

can  only  be  determined  by  the  agreement  of  the  parties  what 
obligation  the  property  is  held  to  secure,  and  the  pledged  prop- 
erty cannot  be  held  by  the  pledgee  as  security  for  any  other 
debt  than  that  intended  to  be  secured  and  which  is  in  the  con- 
tract by  express  terms  or  implication.  If  the  indebtedness  for 
which  the  collateral  is  pledged  is  not  specified,  but  the  pledgor 
simply  pledges  the  property  generally  for  any  indebtedness 
then  existing  or  to  be  created  in  the  future,  the  property  may 
be  held  in  such  case  as  security  generally  for  any  and  all  in- 
debtedness.^ 

In  Garton  v.  Union  City  Banh"^  the  pledge  consisted  of  a 
promissory  note  of  $1,000  given  to  the  cashier  or  order  of  the 
bank,  to  which  was  appended:  "This  note  is  to  be  used  as  col- 
lateral security  to  A.  Climie's  notes."  In  that  case  the  court 
held  that  it  was  proper  to  introduce  oral  proof  to  show  the 
true  consideration  and  the  identity,  nature  and  amount  of  de- 
mands to  which  the  note  was  collateral;  the  court  using  this 
language:  "The  purpose  was  to  correctly  apply  the  note  to 
the  transactions  indicated  it  was  intended  to  cover,  and  confine 
it  to  the  very  claims  it  purported  to  secure.  ...  It  indi- 
cated on  its  face,  or  rather  by  the  memorandum  connected 
with  it,  that  it  was  to  be  carried  out  and  enforced  restrictively 
as  against  Mrs.  G.  (the  maker),  and  with  reference  to  particu- 
lar bank  demands  against  Climie,  and  the  intent  could  not  be 
carried  out  and  strict  protection  be  accorded  Mrs.  G.'s  rights 
without  showing  the  facts." 

§  232.  Pledge  may  be  to  secure  past,  present  or  future 
indebtedness. —  Property  may  be  pledged  to  secure  not  only 
a  debt  created  at  the  time  of  making  the  pledge,  but  also  an 

1  Merchants'  Nat.  Bank  v.  Hall,  83  Holley,  10  Conn.  179.  In  San  An- 
N.  Y.  338.  In  this  case  the  force  of  tonio  Nat.  Bank  v.  Blocker,  77  Tex. 
thelanguageof  the  agreement  which  73,  it  was  held  that  where  collateral 
created  the  pledge  was  discussed,  as  was  pledged  generally  for  the  debts 
to  whether  or  not  it  was  for  debts  of  a  partnership,  it  could  not  be  held 
not  in  existence  at  the  time  of  the  for  a  private  debt  of  one  of  the  part- 
pledge,  but  afterwards  obtained  by  ners."  Loyd  v.  Lynchburg  Nat. 
the  pledgee;  the  court  holding  that  Bank,  86  Va.  690;  and  see  cases  col- 
the  extent  of  the  pledge  must  de-  lected  and  cited,  18  Am.  &  Eng. 
pend  upon  Liie  contract  by  wliich  Ency.  Law,  599,  etc. 
the  property  was  pledged.  Norton  v.  ^  34  Mich.  279. 
Plumb,   14  Conn.   512;    Fairfield  v. 

181 


§  233.]  PLEDGE    OE    PAWN.  [PAET    II. 

indebtedness  past  due,  or  an  indebtedness  to  be  created  in  the 
future.  If  the  debt,  however,  be  a  past-due  debt,  that  is,  a 
debt  that  is  known  to  be  a  pre-existing  debt,  it  is  subject  to 
some  certain  limitations.  The  pledgee  or  creditor  might  not, 
under  certain  circumstances,  be  considered  a  hona  fide  holder 
for  value  to  the  extent  that  he  could  hold  the  property  thus 
pledged  as  security  for  the  payment  of  a  pre-existing  debt 
against  the  true  owner  from  whom  it  had  been  obtained  by 
fraud,  for  the  reason  that  he  parted  with  no  consideration  in 
the  obtaining  of  the  pledge.^  This  is  more  fully  discussed  in 
another  section.^ 

§  233.  The  pledgor  may  pledge  his  property  to  secure 

the  debt  of  another. —  The  pledge  may  be  by  the  pledgor  to 
secure  another's  debt  or  obligation  as  well  as  his  own.  In  such 
case  the  pledge  is  the  same  as  suret}^  for  a  debt,  and  the  pledgor 
would  be  entitled  to  all  the  rights  and  limitations  that  belonged 
to  a  surety  for  a  debt  or  obligation.  And  so  any  change  in  the 
contract  of  suretyship  without  his  consent  or  knowledge,  that 
is,  such  a  change  as  would  discharge  a  surety,  would  release  and 
discharge  the  pledged  property  so  held  as  collateral  security.^ 

If,  however,  the  contract  of  pledge  was  such  that  the  court 
might  hold  that  it  would  be  inclusive  of  extensions  of  time  of 

^  A  pledge  of  stock  by  a  stranger  taking  that  his  property  should  stand 

to  secure  a  debt  past  due,  without  any  as    security   for    its    performance." 

promise  on  the  part  of  the  pledgee  Dodgson  v.  Henderson,  113  111.  360; 

to  forbear,  is  without  consideration.  Davis  v.  People,  1  Gilm.  409;  Waters 

Huldeman  v.  German  Security  Bank  v.  Simpson,  2  id.  570;  Myers  v.  Bank, 

(Ky.),  44S.  W.  383.  Where  a  chattel  is  78  id.  257;  Danforth  v.  Scrapie,  73  id.  " 

pledged  for  a  pre-existing  debt,  the  170:  Merchants'  Nat.  Bank  v.  Hall, 

pledgee  is  not  a  holder  for*value  to  83  N.  Y.  338.    See  cases  cited  in  brief 

the  extent  that  it  will  enable  him  to  for  ai^pellant,  p.  340.     The  court  at 

retain  it  against  the  true  owner  from  page  348  say:  "The  cases  cited  on 

whom  it  has  been  obtained  by  fraud,  the  second  question  are  based  upon  a 

as  he  could   do  if  he  were  a  true  principle  not  denied,  that  a  gift  of 

holder  for  value.   Story  on  Bailments,  time  to  a  principal  debtor  discharges 

sec.  300;  Schouler  on  Bailments,  sec.  the  surety;  but  it  will  be  found  that 

178.  in  them  new  arrangements,  not  con- 

2  Post  p.  — .  templated  at  the  time  of  entering 

3  In  Price  v.  Dime  Savings  Bank,  into  the  guaranties  by  any  of  the 
134  111.  317,  the  court  held  "that  parties,  are  introduced;  andthusthe 
the  change  in  the  terms  of  the  orig-  state  of  circumstances  altered  with- 
inal  contract  without  the  consent  of  out  the  contemplation  and  without 
A.  was  sufficient  to  release  his  under-  the  consent  of  one  of  the  parties." 

183 


CH.  I.]  THE    RELATION.  [§§  234,  235. 

payment,  then  in  such  case  such  extensions  would  not  dis- 
charge or  release  the  pledge.^ 

§  234.  As  to  holding  property  for  former  or  another 

debt. —  The  mere  fact  that  the  pledgor  is  indebted  to  the 
pledgee  on  a  former  or  other  indebtedness  will  cot  authorize 
the  pledgee  to  retain  the  pledged  property  after  the  debt  or 
obligation  for  which  it  is  pledged  is  discharged,  unless  there 
is  some  agreement  from  which  such  an  intention  of  thie  partes 
can  be  drawn.^  The  pledge  may  be  for  one  or  many  debts, 
but  the  extent  of  the  pledge,  the  debt  or  obligation  it  is 
pledged  to  secure,  must  be  determined  by  the  agreement.  In 
Re  Mosser's  Estate '  it  was  held,  where  a  judgment  was  given 
as  collateral  security  for  a  note  which  was  afterwards  paid,  a 
parol  agreement  between  the  creditor  and  the  agent  of  the 
debtor  to  continue  such  judgment  as  security  for  certain  other 
notes  of  the  debtor  was  valid  as  against  subsequent  judgment 
creditors  of  such  debtor. 

§  235.  Continuing  security  —  Future  transactions. — 

By  the  agreement  of  the  parties  the  pledge  is  often  made  to 
cover  future  transactions,  such  as  renewal  of  notes,  extension  of 
time  of  payment,  and  even  new  and  additional  indebtedness. 

1  White's  Bank  v.  Myles,  73  N.  Y  the  purposes  for  which  it  may  be 
335;  First  Nat.  Bank  of  Omaha  v.  held  —  and  that  they  do  it  is  not 
Goodman  et  aL  (Neb.),  79  N.  W.  1062.  open  to  question, —  I  see  no  reason 
Where  policies  were  pledged  by  the  why  such  parol  agreement  may  not 
wife  to  secure  a  claim  for  which  con-  be  entered  into  on  behalf  of  either  by 
tinning  security  had  been  given  an  agent  acting  under  parol  author- 
granting  extension  of  time  to  the  ity."  In  Philler  v.  Jewett,  166  Pa.  St. 
debtor,  the  pledge  would  not  be  dis-  456,  it  was  held  that  securities  depos- 
charged.  ited  by  a  bank  belonging  to  a  clear- 

-  Jones  on  Pledges,  sec.  355;  Bald-  ing-house  association  with  the  clear- 
win  V.  Bradley,  69  111.  32;  Jarvis  v.  ing-house  committee,  and  pledged 
Rogers,  15  Mass.  389;  Mahoney  v.  Ca-  according  to  the  clearing-house  reg- 
perton,  15  Cal.  314;  Buckley  v.  Gar-  ulations  adopted  by  the  associative 
rett,  60  Pa.  St.  333.  In  determining  banks,  first  for  payment  of  its  daily 
the  effect  to  be  given  to  an  absolute  balances,  and  next  as  security  for 
assignment  of  securities,  the  whole  other  indebtedness  due  to  members 
transaction  between  the  parties  must  of  the  association,  will  be  held  after 
be  taken  into  account.  Boardman  payment  of  daily  balances  to  meet  a 
V.  Holmes.  124  Mass.  438;  Hilton  v.  deficiency  of  other  securities  given 
Sims,  45  Ga.  535.  by  it  to  the  clearing-house  commit- 

3  161  Pa.  St.  469.  "If  it  be  compe-  tee  to  provide  for  payment  of  clear- 
tent  for  the  parties  to  a  judgment  by  ing-liouse  certificates  issued  to  it  and 
their  own  parol  agreement  to  change  in  maintaining  its  credit. 

183 


§  236.]  PLEDGE    Oli    PAWN,  [PART    II. 

It  is  a  matter  of  frequent  occurrence  that  banks  take  from 
their  customers  bank  notes  and  mortgages  with  the  under- 
standing that  they  shall  be  held  as  collateral  security  to  cover 
all  indebtedness,  renewals  or  advances  made  to  the  pledgor; 
this  is  generally  done  by  entering  into  a  written  contract,  but 
it  may  be  by  parol  and  delivery  of  the  property  pledged. 
These  pledges  may  be  said  to  be  in  the  nature  of  continuing 
securities  and  the  courts  will  enforce  such  transactions.  Such 
was  the  security  in  question  in  Merchants'  Nat.  Bank  v.  Uall^ 
where  certain  stocks  were  assigned  to  the  plaintiff  as  security 
for  payment  of  any  demands  plaintiff  might  have  from  time 
to  time  against  assignor's  husband,  who  at  the  time  was  largely 
indebted  to  the  plaintiff.  The  court  held  that  the  assignment 
by  its  terms  included  and  secured  all  demands  had  and  held 
by  the  plaintiff  against  the  husband  of  the  assignor  after  its 
execution,  as  well  as  those  existing  at  that  time,  and  that  the 
circumstances  disclosed  this  to  have  been  the  intent  of  the 
parties;  also  that  the  assignment  w^as  a  continuing  security, 
and  that  an  extension  of  time  by  renewals,  in  the  ordinary 
course  of  business,  granted  by  the  plaintiff  for  payment  of  any 
of  the  debts,  did  not  discharge  the  lien  upon  the  stock.  Such 
a  pledge  is  as  limitless  as  it  well  could  be.  .  .  .  As  was 
said  by  the  court,  "it  specifies  no  kind  of  demand,  no  amount, 
no  length  of  time  of  any  indebtedness  for  which  the  stock 
might  be  liable.  The  pledgor,  however,  of  such  a  pledge 
could  at  any  time  by  a  notice  to  the  pledgee  limit  the  pledge, 
but  until  notice  of  such  limitation  was  given  it  would  be  held 
to  be  a  continuing  security."  ^ 

236.  When  several  debts — Application  of  payment. 

The  rule  of  law  as  to  the  application  of  payments  where  there 
are  several  distinct  debts  secured  by  a  pledge  of  property  is 
the  same  as  exists  in  other  cases;  if  the  pledgor  makes  no  ap- 
plication of  the  payment  to  any  particular  debt  at  the  time  of 
making  it,  the  pledgee  may  apply  such  payment  to  whichever 

183  N.  Y.  338.  holder  of  paper  received  as  pledged 

^  Agawam  Bank  v.  Strever,  18  N.  Y.  security  holds  it  subject  to  equities 

502;  Douglas  v.  Reynolds,  7  Pet.  (U.  S.)  existing  at  the  time  of  the  transfer, 

113;  McClurev.  Roman,  52  Pa.  St.  458;  but  not  to  those  arising  subsequent 

Texas  Banking  Co.  V.  Turnley,  61  Tex.  thereto.    Richards  v.  Rice,  9   Baxt. 

365.  In  Tennessee  it  was  held  that  the  (Tenn.)  290,  40  Am.  Rep. 

184 


cii.  I.]  thp:  kelation.  [§  236. 

of  the  secured  debts  he  pleases,  and  if  the  pledgee  is  compelled 
to  foreclose  the  pledge,  he  may,  in  the  absence  of  any  stipula- 
tion in  the  contract  or  pledge,  so  apply  the  receipts  to  the 
debts  or  obligations  so  secured.  If  some  of  the  debts  are  also 
secured  by  collaterals  pledged  by  other  persons  than  the  debtor, 
he  still  has  the  right  to  apply  the  amount  received  from  the 
foreclosure  to  those  debts  that  are  not  thus  secured.  And  it 
has  been  held  that  the  sureties  for  the  secured  debt  cannot  be 
subrogated  to  the  rights  of  the  pledgee  in  the  proceeds  of  the 
foreclosure,  nor  are  they  entitled  to  have  the  fund  apportioned 
or  in  any  way  applied  to  all  of  the  debts  secured  by  the  pledge. 
On  the  other  hand,  the  pledgee  may  make  such  application  as 
will  be  for  his  best  interest,  if  he  is  not  violating  any  stipula- 
tion in  the  contract  of  pledge.  In  order  to  obtain  the  privi- 
lege of  being  subrogated  to  the  rights  and  privileges  of  the 
pledgee,  such  pledgors  who  have  furnished  the  further  secu- 
rity by  pledge  must  first  pay  all  of  the  debts  the  property 
stands  pledged  for;  and  in  that  case  they  may  be  substituted 
and  stand  in  the  place  of  the  pledgee  creditor.  But  if  only  one 
or  more  of  the  debts  are  paid  and  the  property  is  pledged  for 
them  and  other  debts,  the  pledgee  Avill  hold  the  property  as  se- 
curity for  any  other  unpaid  debts.  In  Wilcox  v.  Fair  Haven 
Bank^  the  court  say:  "It  is,  however,  undoubtedly  an  estab- 
lished rule  of  equity  that  a  surety  who  has  paid  the  debt  of  his 
principal,  either  voluntarily  or  h^  compulsion,  is  entitled  for 
his  indemnity  to  any  property  pledged  or  collateral  security 
given  therefor  by  the  principal  to  the  creditor.  But  as  this 
rule  is  founded  on  the  principles  of  reason  and  justice  and  not 
upon  any  contract  or  stipulation  to  that  effect  between  the  par- 
ties, it  follows  as  a  necessary  consequence  that  a  surety  is  not 
to  be  substituted  in  the  place  of  a  creditor,  unless  from  the  cir- 
cumstances of  the  case  it  is  shown  that  it  is  just  and  reasonable 
that  it  should  be.  Hence  it  is  obvious  that,  in  order  to  become 
entitled  to  such  substitution,  he  must  first  pay  the  whole  of  the 
debt  or  debts  for  which  the  property  is  mortgaged,  or  the  col- 
lateral security  is  given,  to  the  creditor;  for  it  would  be  mani- 
festly unjust  and  a  plain  violation  of  his  rights  to  compel  him 
to  relinquish  any  portion  of  the  property  before  the  obliga- 
tion, for  the  performance  of  which  it  was  conveyed  to  him 

1 7  Allen  (Mass.),  270. 
185 


§§  237,  237«.]  PLEDGE    OK    PAWN.  [PAKT    II, 

as  security,  bad  been  fully  kept  and  complied  witb.  Sucb  pre- 
vious payment  by  a  surety  isalike  essential  wbere  tbereis  only 
one  debt  and  one  surety,  and  wbere  tbere  are  many  debts,  all 
of  wbicb  are  equall}^  protected  and  secured  by  tbe  property 
mortgaged,  and  many  several  sureties  of  tbe  several  debts; 
for  tbe  cbief  and  primary  object  of  a  pledge  or  mortgage  to  a 
creditor  is  bis  benefit,  protection  and  advantage  in  reference 
to  eacli  and  all  of  tbe  several  debts  wbicb  it  was  made  or  given 
to  secure,  and  until  tbis  object  is  fully  accomplisbed  no  surety 
can  justly  or  lawfully  interfere  to  disturb  him  in  tbe  possession 
of  tbe  property  pledged,  or  binder  him  from  appropriating  tbe 
proceeds  of  it  toward  payment  of  any  sucb  debt  wbicb  be  can- 
not otberwise  collect  or  render  available." 

§  237.  A  pledge  which  secures  a  debt  bearing  interest 

secures  the  interest  as  well  as  the  debt. —  Tbis  follows  as  a 
matter  of  course.  It  would  be  presumed  from  tbe  very  fact 
tbat  tbe  debt  was  an  interest-bearing  debt  tbat  it  was  tbe  in- 
tention of  tbe  pledgor  to  secure  as  well  tbe  payment  of  the 
interest  as  the  payment  of  tbe  principal.*  The  pledge  is  con- 
strued to  be  for  tbe  whole  debt.  By  implication  it  will  be  un- 
derstood that  tbe  pledge  is  for  the  payment  of  the  whole  debt 
or  engagement,  unless  the  contract  of  pledge  stipulates  otber- 
wise, and  so  the  payment  of  a  part  of  the  debt  will  not  release 
a  part  of  tbe  pledged  property,  but  the  whole  of  the  property 
may  be  held  to  secure  tbe  unpaid  amount. 

§  237a.  Delivery  of  the  property  by  the  pledgor  —  Accept- 
ance and  continued  possession  of  the  property  by  the  pledgee. 
These  two  essentials  are  so  closely  connected  and  so  depend- 
ent upon  each  other,  that  it  is  thought  advisable  to  discuss^ 
them  together.  The  delivering  of  the  property  pledged  by 
tbe  pledgor  to  tbe  pledgee,  and  the  acceptance  and  continued 
possession  of  tbe  property  by  the  pledgee,  is  that  which  gives 
to  the  world  notice  of  tbe  pledgee's  interest  and  the  extent  of 
his  rights  to  the  property  in  his  possession.  These  stand  in  tbe 
place  and  stead  of  tbe  recording  of  a  mortgage,  or  the  filing 
of  a  lien,  as  it  is  a  well-understood  principle  of  law  that  posses- 
sion of  property  is  notice  to  all  the  world  of  all  the  rights  and 

1  Jones  on  Pledges,  sec.  363;  Board-  ma}'  however  be  made  to  secure  only 
man  v.  Holmes,  124  Mass.  438;  Bald-  a  part  of  the  debt.  Fridley  v.  Bowen, 
win  V.  Bradley,  69  III.  33.     A  pledge    103  III  633,  637. 

186 


CH.  I.]  THE   EELATION.  [§  238. 

interests  of  the  possessor  in  the  property  possessed.  It  has  been 
noticed  that  in  the  pledge  or  pawn  there  is  no  recording  of 
the  same  in  a  public  record  kept  in  some  public  office ;  there  is 
no  filing  of  notice  of  the  lien  which  the  pledgee  has  upon  the 
property.  In  the  place  of  this,  and  as  effectual  as  all  this  would 
be,  is  the  fact  that  the  property  has  been  delivered  into  the 
possession  of  the  pledgee  and  is  held  by  him  as  security  for  the 
indebtedness.  Other  creditors  of  the  pledgee  may  not  actually 
know  the  extent  of  the  claim,  or  the  conditions  of  the  pledge, 
but  the  law  holds  them,  because  of  this  delivery  and  possession, 
to  a  full  knowledge  of  all  that  pertains  to  the  holding  of  the 
pledged  property  by  the  pledgee. 

§  238.  If  property  not  delivered  — Pledge,  when  good. —  A& 
between  the  parties  to  a  pledge,  a  contract  to  pledge  would  be 
binding  even  if  the  property  had  not  been  delivered,  and  such 
a  contract  resting  upon  a  valuable  consideration  could  be  en- 
forced ;  for  the  reason,  among  others,  that  equity  would  con- 
sider that  as  done  which  ought  to  be  done.  Or  would  apply 
that  other  maxim,  "Equity  considers  substance  rather  than 
form."  But  before  the  docrine  of  equitable  pledge  can  be  ap- 
plied there  must  be  a  contract  showing  that  the  debtor  de- 
signed to  subject  the  particular  property  to  the  payment  of 
the  debt.^  But  as  against  subsequent  purchasers  in  good  faith 
or  the  creditors  of  the  pledgor,  as  we  have  already  seen,  deliv- 
ery is  an  essential ;  for,  as  to  such  persons,  the  pledgee  could 
not  enforce  the  pledged  contract;  there  would  be  no  notice  of 
its  existence,  and  the  pledgee  would  not  be  held  to  be  a  hona^ 
fide  holder  of  the  property.^ 

1  Hook  V.  Ayers  (C.  C.  A.),  80  Fed.  Casey  v.  Caveroc  it  was  held:  "That 
978.  possession  is  of  the  essence  of  a  pledge^ 

2  A  pledge  cannot  be  created  as  se-  and  without  it  no  privilege  can  exist 
curity  for  a  debt  without  a  transfer  as  against  third  parties;  that  this 
of  the  thing  pledged  to  the  pledgee  doctrine  is  in  accordance  with  both 
or  his  agent.  Textor  v.  Orr,  86  Md.  the  common  and  the  civil  law."  It 
392.  An  executory  contract  of  the  was  further  held  "that  the  thing 
pledge  may  be  good  between  the  par-  pledged  may  be  in  the  temporary 
ties.  Kaiser  v.  Topping,  72  III.  226;  possession  of  the  pledgor  as  special 
Tuttle  V.  Robinson,  78  111.332.  "It  bailee  without  defeating  the  legal 
will  not  be  enforced  to  the  injury  of  possession  of  the  pledgee;  but  where 
other  creditors."  City  Fire  Ins.  Co.  it  has  never  been  out  of  the  pledgor's 
V.  Olmtead,  33  Conn.  476;  Casey  v.  actual  possession,  and  has  always 
Caveroc,  96  U.  S.  467.     In  the  case  of  been  subject  to  his  disposal  by  way 

187 


§§  239,  2i0.] 


PLEDGE    OK    PAWN. 


[part  II. 


§239.  The  delivery, —  The  delivery  should  be  of  such  a 
nature  that  by  it  the  pledgor  relinquishes  all  control  of  the 
pledged  property  to  the  pledgee,  and  by  it  the  pledgee  obtains 
the  absolute  and  unequivocal  control  of  it.  In  MaTiony  v. 
Hale  ^  it  was  held:  "In  the  case  of  a  pledge,  the  pledgee  must 
take  possession,  and  to  retain  it  he  must  retain  possession;  an 
actual  delivery  of  property  capable  of  personal  possession,  and 
a  continued  change  of  possession  is  essential."  "In  case  of  a 
pledge  the  requirement  of  possession  in  the  pledgee  is  an  inex- 
orable rule  of  law,  adopted  to  prevent  fraud  and  deception. 
There  must  be  an  actual  delivery  of  the  chattels  as  distin- 
guished from  a  mere  pretense,  and  the  change  of  possession 
must  be  continuing,  not  formal,  but  substantial."  The  manner 
of  effecting  the  required  delivery,  of  course,  depends  upon  the 
nature  of  the  property.  If  the  property  is  capable  of  actual 
manual  delivery,  it  should  be  so  delivered ;  if  not,  then  the  best 
delivery  the  property  will  admit  of  should  be  made. 

§240.  Constructive  or  symbolical  delivery. —  If  the  prop- 
erty and  the  circumstances  will  admit  of  no  better  delivery, 
then  a  constructive  or  symbolical  delivery  will  be  sufficient. 
As,  for  example,  if  the  property  be  stored  in  a  warehouse  with 
proper  notice  to  the  warehouseman,  or  if  held  by  a  contract  in 
the  hands  of  a  third  person,  notice  to  the  holder  of  the  prop- 
erty has  been  held  to  be  a  sufficient  delivery. 

In  Whitaker  v.  Sumner^  the  court  say:  "It  seems  now  well 
settled  that  when  personal  property  is  under  a  pledge  or  lien. 


of  collection,  sale,  substitution  or  ex- 
change, no  pledge  or  privilege  exists 
.as  against  third  persons."  Until  the 
delivery  of  the  pledged  property  the 
transaction  is  simply  an  executory 
contract  and  the  pledgee  acquires  no 
right  of  property  in  the  thing.  Story 
-on  Bailments,  sec.  297;  First  Nat. 
Bank  v.  Nelson,  38  Ga.  391 ;  Wolcott 
V.  Keith,  22  N.  H.  196;  Williams  v. 
Gillespie,  30  W.  Va.  586;  Nesbitt  v. 
Macon  Bank,  12  Fed.  686.  A  pledge 
of  personal  property  is  invalid  as 
•against  the  pledgor's  creditors  where 
no  delivery  is  made,  and  no  actual, 
■open,  unequivocal  possession  taken. 


George  v.  Pierce,  55  Pac.  775 ;  George 
V.  Matorn,  56  Pac.  53.  As  against 
creditors,  a  pledge  of  the  corporate 
stock  must  be  accompanied  by  de- 
livery and  a  continued  change  of  pos- 
session. Delivery,  momentary  pos- 
session and  return  is  insufficient. 
McFall  V.  Buckeye,  etc..  122  Cal.  468, 
55  Pac.  253;  Moors  v.  Reading,  167 
Mass.  322.  Bona  fides  does  not  avail 
the  pledgee  in  absence  of  delivery 
and  possession.  Geilfus  v.  Corrigan, 
95  Wis.  651.  37  L.  R.  A.  166. 

1 66  Minn.  463,  69  N.  W.  334;  Casey 
V.  Caveroc,  96  U.  S.  467. 

2  20  Pick.  (Mass.)  399. 


188 


CH.   I.]  '  THE    RELATION.  [§  2i0, 

whether  created  by  operation  of  law  or  by  the  act  of  the  owner, 
the  general  property  remains  in  the  owner,  and  that  he  may 
transfer  it  by  a  proper  contract  and  upon  a  good  consideration, 
subject  only  to  the  lien.  And  in  such  case,  as  the  actual  cus- 
tody and  possession  of  the  goods  for  the  time  being  is  in  th© 
hands  of  the  party  having  the  lien,  it  follows  that  a  construc- 
tive or  symbolical  delivery  is  sufficient  to  pass  the  property. 
An  order  by  the  vendor  upon  the  keeper,  or,  if  the  contract  of 
sale  or  conveyance  be  in  writing,  proper  and  satisfactory  no- 
tice of  the  conveyance  by  the  vendee  to  the  holder,  constitutes 
such  constructive  delivery.  Where  goods  are  lying  in  a  ware- 
house, although  subject  to  a  lien  for  keeping,  notice  to  the 
warehouse  keeper,  where  all  the  other  requisites  of  a  sale  are 
proved,  is  equivalent  to  a  delivery." 

In  Hathaway  v.  llayyies '  it  was  held  "  that  the  assignment  in 
blank  of  a  bill  of  lading  to  a  bank  that  had  by  reason  of  it  dis- 
counted the  draft,  conveyed  an  interest  in  the  property  to  the 
bank;  and,  whether  that  interest  was  as  security  only  that  the 
bill  should  be  accepted,  or  that  it  should  be  both  accepted  and 
paid,  it  was  immaterial.  That  the  claimant  bank,  by  the  in- 
dorsement of  the  bill  of  lading,  was  entitled  to  hold  it  and 
the  property  described  in  it."  So,  where  the  goods  or  pledged 
property  is  incapable  of  being  delivered  by  handing  the  prop- 
erty from  one  to  another,  a  symbolical  delivery  will  be  suffi- 
cient to  create  the  pledge;  as,  for  example,  if  the  goods  are 
stored  in  a  warehouse,  by  delivering  the  key  of  the  building 
for  the  purpose  of  giving  to  the  pledgee  control  of  the  prop- 
erty, or  by  delivering  the  evidence  of  ownership  or  possession 
with  an  intention  of  turning  over  the  control  of  the  property 
to  the  pledgee.^     It  may  be  said  in  the  light  of  all  the  author- 

1 124  Mass.  311.  itors  of  the  pledgor,  and  it  appeared 

2  Sumner  v.  Hamlet,  12  Pick.  76.  that  said    receipt    did  not  run    to 

In  the  case  of  Whitney  v.  Tibbitts,  bearer,  but  stated  that  the  flour  was 

17  Wis.  300,  the  question  was  whether,  "deliverable  only  on  return  of  the 

on  a  pledge  of  flour  stored  in  aware-  receipt,"  and  held  that  the  plaintiff 

house  in  Milwaukee,  a  delivery,  by  was  entitled  to  show  that,  by  a  gen- 

the   pledgor,  of  the  warehouse    re-  eral  custom  in  Milwaukee,  flour  in 

ceipt,  without  indorsement,  consti-  store  was  transferred  by  a  delivery 

tuted    a  sufficient    delivery  of  tlie  of  such    receipts  without    indorse- 

property  to  sustain    the   pledge    as  ment.    The  court  say:  "It  seems  to 

against  subsequent   attaching  cred-  me  to  present  a  stronger  case  of  de- 

189 


§  240.] 


PLEDGE    OR    PAWN. 


[part  II. 


ities,  that  the  test  of  delivery  is  whether  or  not  the  property 
has  been  placed  in  the  possession  and  control  of  the  pledgee. 

livery  than  some  that  are  usually    ger,  the  vendor,  by  delivering  the 


referred  to  as  suflBcient.  Take,  for 
example,  the  one  of  a  delivery  of  the 
key  of  the  warehouse  where  the 
property  is  stored.  In  that  case 
the  vendor,  owning  the  warehouse, 
might,  notwithstanding  the  delivery 
of  the  key,  still  keep  possession  of 
his  warehouse  and  resume  control  of 
the  property.  But  where  the  prop- 
erty is  in  the  warehouse  of  a  stran- 


receipt,  divests  himself  of  all  the 
means  of  controlling  or  retaining 
the  property,  and  gives  them  to  the 
vendee  quite  as  effectually  as  would 
the  possession  of  the  key.  The  ma- 
terial thing  is,  that  the  vendor  de- 
livers to  the  vendee  that  which  en- 
ables the  latter  in  fact  to  take  and 
control  the  property." 


190 


CHAPTER  11. 
PLEDGING  NEGOTIABLE  PAPER. 


§  241.  Negotiable  paper. 

242.  An  equitable  assignment. 

243.  Pledgee  holder  for  value. 


§  244  Whether  a  pre-existing  debt 
a  sufficient  consideration  to 
constitute  a  pledgee  a  holder 
for  value. 


§24-1.  Negotiable  paper. —  Promissory  notes,  bills  of  ex- 
change and  other  negotiable  paper  are  often  the  subject  of  a 
pledge  or  pawn,  and  delivery  is  essential  in  such  cases.  The 
control  of  the  property  must  be  in  the  pledgee,  as  in  other 
cases.  Just  how  can  this  property  be  delivered  ?  Must  it  be 
by  indorsement  or  by  written  assignment?  It  is  a  general 
rule  that  whatever  delivery  of  property  would  be  necessary  in 
case  of  sale  would  be  necessary  in  order  to  create  a  pledge ; 
and  it  no  doubt  is  the  general  rule  that  to  pass  legal  title  to 
such  like  property,  as  notes  and  bills,  and  negotiable  paper  not 
made  payable  to  bearer,  it  would  be  necessary  to  indorse  the 
paper  or  make  a  written  assignment  where  indorsement  or  as- 
signment would  be  necessary  in  case  of  sale.  That  is  to  say, 
if  the  negotiable  instrument  was  one  payable  to  order,  as  a 
general  rule  it  would  be  necessary  to  create  a  pledge  of  it  to 
deliver  the  instrument,  together  with  the  indorsement  upon 
it,  which  would  transfer  the  property  in  it.  If,  however,  the 
instrument  is  one  payable  to  bearer,  or  if  it  be  indorsed  in 
blank,  then  mere  delivery  alone  with  the  intention  of  pledging 
it  would  be  sufficient.  The  delivery  of  negotiable  instruments 
unindorsed,  where  indorsement  is  required  as  a  pledge,  vests 
in  the  pledgee  an  equitable  interest;  the  pledgee  in  such  cases 
takes  the  property  subject  to  any  prior  equities  of  third  per- 
sons as  against  the  pledgor.^  But  the  general  rule  seems  to  be 
that  it  is  necessary  that  the  negotiable  instrument  requiring 

1  Dickey  v.  Pocomoke  City  Nat.  without  a  written  assignment,  is  a 
Bank,  89  Md.  280,  43  Atl.  .33.  Held,  valid  pledge  and  will  be  upheld  in 
that  the  mere  delivery  of  a  mort-  equity.  A  written  assignment  is  not 
gage,  and  tlie  bills  thereby  secured,    necessary,  but  the  mere  delivery  of 

191 


§  -^^-^-J 


PLEDGE    OR    PAWN. 


[part    II. 


indorsement  to  make  a  valid  transfer  must  be  so  indorsed  and 
delivered  in  order  to  pledge  it  as  collateral  security.  Some  of 
the  courts  have  held  that  such  paper  may  be  pledged  by  mere 
delivery  and  acceptance.  In  Louisiana  delivery  of  negotiable 
securities  unindorsed  seems  to  be  sufficient  to  constitute  a  valid 
pledge.  This,  however,  depends  more  or  less  upon  a  statute 
of  the  state.^  In  Georgia  it  was  held,  in  Smith  v.  Jennings^ 
that  the  pledgee  stood  in  the  place  of  the  pledgor,  and  was 
protected  against  the  pledgor  whether  a  subsequent  creditor 
creditor  had  notice  of  this  equity  or  not. 

§  242.  An  equitable  assignment. —  While  it  is  necessary  to 
a  pledge  of  the  legal  title,  in  negotiable  paper  that  only 
passes  by  indorsement  or  assignment,  to  indorse  or  assign  it  to 
the  pledgee,  it  is  no  doubt  true  that  such  paper  may  by  the 
payee  be  pledged  by  mere  delivery  to  the  pledgee,  to  the  ex- 
tent that  the  pledge  will  be  good  as  between  the  parties:  the 
pledge  m  such  case  operating  as  an  equitable  assignment  to 
the  pledgee.  At  the  common  law  the  pledgee,  under  such  cir- 
cumstances, could  maintain  a  suit  in  the  name  of  the  pledgor, 
or  person  having  the  legal  title,  and  now  by  reason  of  stat- 
utes in  many  of  the  states,  in  his  own  name.  In  Yan  Biper 
V.  Baldwi7i,^  the  plaintiff  rented  certain  premises  to  one  Homan, 

a  bond  and  mortgage  as  security  is  a    ren,  34  Me.  89.  the  property  in  nego- 


valid  pledge  and  will  be  so  treated. 
Crane  v.  Gough,  4  Md.  334 ;  Kamena 
V.  Huelbig,  23  N.  J.  Eq.  88;  Gal  way 
V.  Fullerton,  17  N.  J.  Eq.  389;  Pres- 
cott  V.  Hull,  17  Johns.  284. 

1  Casey  v.  Schneider,  96  U.  S.  496. 

2  74  Ga.  551. 

3 19  Hun  (N.  Y.),  344;  affirmed.  85 
N.  Y.  618.  Delivery  passes  the  equi- 
table title  to  a  negotiable  instru- 
ment payable  to  order,  and  the 
holder  may  maintain  an  action 
thereon  in  the  name  of  the  payee,  or 
person  holding  the  legal  title  by  stat- 
ute. Howevei',  in  most  of  the  states 
the  person  holding  such  equitable 
title  may  sue  in  his  own  name  be- 
cause he  is  the  real  party  in  interest* 
but  these  statutes  do  not  confer  upon 
him  the  right  of  a  bona  fide  holder 
by  indorsement.    In  Coombs  v.  War- 


tiable  notes  may  pass  by  delivery 
without  indorsement.  See  also  Bil- 
lings V.  Jane,  11  Barb.  (N.  Y.)  620.  A 
negotiable  note  may  be  assigned  by 
simple  deliveiy,  but  the  assignment 
must  be  made  by  the  rightful  owner 
or  under  his  authority.  Davis  v. 
Lane,  8  K  H.  224.  In  Thompson  v. 
Onley,  96  N.  C.  9,  it  was  held  ^'  that 
it  was  not  necessary  to  give  title  to 
a  note  or  bond  to  indorse  it  or  assign 
it,  and  that  the  question  of  owner- 
ship was  a  matter  of  fact  for  the  jury 
to  decide."  That  the  equitable  title 
passes  by  mere  delivery,  see  Free- 
man v.  Perry,  22  Conn.  617;  Miles  v. 
Reinger,  39  Ohio  St.  499;  Foreman  v. 
Beckwith,  73  Ind.  515;  Beard  v.  De- 
dolph,  29  Wis.  136.  In  the  case  of 
Bank  of  Chadron  v.  Anderson,  48  Pac. 
197,  it  was  held  that  "simple  deliv- 


192 


CII.  II.]  PLEDGING    NEGOTIABLE    PAPER.  [§   243. 

who,  by  the  express  direction  of  his,  the  lessee's,  wife,  delivered 
to  an  agent  of  the  plaintiff  a  note  made  by  the  defendant, 
Baldwin,  to  her  order,  to  secure  the  payment  of  the  rent  to 
become  due  under  the  lease.  The  note  was  not  indorsed  by 
the  wife  at  the  time  of  its  delivery.  The  rent  not  having  been 
paid,  and  the  wife  having  refused  to  indorse  the  note,  the 
plaintiff  brought  this  action  to  recover  the  amount  thereof. 
Held,  "  that  the  pledge  of  the  note  operated  as  an  eqaitable 
assignment  thereof  to  the  plaintiff,  and  that  he  could  sue 
thereon  in  his  own  name."  The  court  say:  "Such  delivery  of 
the  note  constituted  a  formal  pledge  thereof  for  the  purposes 
mentioned,  and  vested  the  equitable  title  thereto  in  the  plaint- 
iff notwithstanding  the  note  was  not  indorsed  by  the  payee." 
§  2U.  Pledgee  holder  for  value. —  A  rule  analogous  to  that 
which  obtains  in  the  sale  of  negotiable  paper,  as  to  bona  fide 
holders,  also  obtains  in  the  case  of  pledging  such  paper;  and 
it  may  be  said  to  be  a  general  rule  that  where  a  bona  fide 
pledgee  of  negotiable  instruments  receives  them  in  due  course 
of  business,  and  before  maturity,  for  a  valuable  consideration 
without  notice  of  any  equities,  he  becomes  a  pledgee  for  value, 
and  will  be  protected  against  all  equities  which  may  arise  be- 
tween the  original  parties,  and  entitled  to  all  the  protection 
that  can  be  claimed  by  a  purchaser  of  the  paper  under  such 
like  circumstances.^  If,  however,  there  is  that  upon  the  face 
of  the  instrument  which  is  pledged  which  would  put  a  rea- 
sonably prudent  man  upon  inquir}^,  it  is  the  duty  of  the  pledgee 
to  inquire,  and  if  he  fails  to  make  inquiry  he  will  be  held  to 
have  had  notice  of  whatever  would  have  been  discovered  had 
he  made  the  investigation,  and  he  cannot  under  such  circum- 

ery  of  a  promissory  note  without  in-  84  N.  Y.  190.  New  Hampshire  seems 
dorsement  vests  a  contingent  equi-  to  stand  alone  in  opposing  the  doc- 
table  interest."  trine  that  a  pledgee,  under  circum- 
1  Warner  v.  Fourth  Nat.  Bank,  115  stances  mentioned  in  the  text,  is  a 
N.  Y.  251 ;  Gates  v.  National  Bank,  100  bona  fide  holder.  The  holding,  how- 
U.  S.  239;  Nelson  v.  Eaton,  26  N.  Y.  ever,  in  this  state  in  some  of  the 
410;  Allan  v.  King,  4  McLean  (U.  S.),  earlier  reports  has  latterly  been  more 
128;  Hempner  v.  Comer,  73  Tex.  196;  or  less  limited.  See  Jenness  v.  Bean, 
Worcester  Nat.  Bank  v.  Cheeney,  87  10  N.  H.  266;  Williams  v.  Little,  11 
111.  602;  Kinney  V.  Kruse,28  Wis.  183;  N.  H.  66;  Goss  v.  Emerson.  23  N.  H. 
Bealle  v.  Southern  Bank,  57  Ga.  274;  38;  Tucker  v.  New  Hampshire  Sav- 
Exchange  Bank  v.  Butner,  60  Ga.  ings  Bank,  58  N.  H.  83;  Memphis 
654;  Duncomb  v.  New  York  E.  Co.,  Bethel  v.  Bank,  101  Tenn.  130. 
13                                               193 


§  244.]  PLEDGE    OR    PAWN.  [pART    IT. 

stances  claim  the  privileges  of  a  honafide  holder  because  he 
had  no  notice  of  the  equities.  The  rule  that  he  has  actual  no- 
tice of  all  the  facts  that  an  investigation  would  have  discovered 
obtains.^ 

§  244.  Whether  a  pre-existing  debt  a  sufficient  considera- 
tion to  constitute  a  pledgee  a  holder  for  value. —  As  has  al- 
ready been  stated,  a  pledge  of  negotiable  paper  may  be  made 
to  secure  payment  of  a  pre-existing  debt;  and  as  between 
parties,  there  is  no  doubt  that  such  a  debt  is  a  valid  considera- 
tion, and  will  support  such  a  pledge;  but  whether  it  is  such  a 
consideration  as  will  constitute  a  pledgee  a  holder  for  value  if 
pledged  before  maturit}'  and  without  notice  of  any  infirmities, 
whether  under  such  circumstances  the  pledgee  will  be  pro- 
tected in  his  holding  against  prior  equities,  is  the  question  we 
are  to  consider.  The  solution  of  the  whole  matter,  as  it  seems 
to  us,  rests  upon  the  question  of  consideration.  Did  the  pledgee 
pay  anything,  or  do,  or  forbear  to  do,  anything?  "Was  there 
any  benefit  derived  from  the  transaction  by  the  pledgor?  As 
throwing  some  light  upon  the  subject,  let  us  consider  the  nat- 
ure of  a  pre-existing  debt.  It  means  a  debt  already  existing 
at  the  time  of  the  executing  of  the  pledge;  not  an  indebted- 
ness in  any  way  connected  with  the  transaction  or  the  pledg- 
ing. But  it  may  be  that  certain  benefits  are  derived  from  the 
contract  by  the  pledgor;  as,  for  example,  if  the  antecedent 
debt  is  due  and  the  pledgee  is  in  a  situation  where  he  might 
commence  suit  upon  the  indebtedness  against  the  pledgor,  and 
the  pledgor  under  such  circumstances  should  pledge  to  him  the 
negotiable  paper,  and  by  means  of  the  pledge  should  obtain 
further  time  for  the  payment  of  the  antecedent  debt;  or,  if  the 
pledgee  released  security  for  the  pa3^ment  of  his  debt,  or  the 
pledgor  had  in  any  way  bettered  his  condition,  in  such  case 
there  would  be  no  doubt  but  that  the  contract  would  rest  upon 
a  valuable  consideration,  and  if  the  negotiable  paper  was 
pledged  before  maturity,  under  such  circumstances  the  pledgee 
would  be  said  to  be  a  holder  for  value;  and  if  the  pledgee 
should,  by  reason  of  the  contract,  become  the  owner  of  th( 
negotiable  paper,  or  if  by  reason  of  the  contract  it  should 
necessary  for  him  to  bring  an  action  upon  the  negotiable  papei 
thus  pledged,  the  courts  would  hold  that  he  held  the  paper  free 

1  First  Nat.  Bank  v.  Broadway  Nat.  Bank,  47  N.  Y.  Sup,  880. 
194 


CII.  II.]  PLEDGING  NEGOTIABLE  PAPEK.  [§.  244:. 

from  infirmities,  and  tliat  he  was  a  liolder  for  value  and  that 
it  was  not  subject  to  prior  equities.  But  if,  on  the  contrary, 
there  was  no  such  benefit  obtained  by  the  pledgor  by  reason, 
of  the  pledge,  if  the  pledgee  simply  received  the  security  for 
the  antecedent  debt,  giving  nothing  in  return,  if,  in  other  words, 
there  was  no  moving  consideration  for  the  creating  of  the 
pledge  relation,  no  benefit  to  the  pledgor,  in  such  case  the 
courts  have  not  been  entirely  harmonious  in  their  holdings. 
Yery  many  of  the  stute  courts,  notably  Kew  York,  Michigan, 
and  Ohio,  have  held  that,  there  being  no  consideration  mov- 
ing between  the  parties,  the  pledgee  could  not  be  held  to 
be  a  holder  for  value;  the  theory  being,  as  we  have  already 
said,  that  the  pledgee  gives  no  consideration  for  the  pledge; 
he  surrenders  nothing;  is  simply  made  better  by  reason  of  the 
security.  He  is  not  like  a  hona  fide  purchaser  of  negotiable 
paper  who  pays  out  his  money,  or  gives  up  some  valuable  piece 
of  property  or  security;  on  the  contrary  the  pledgee  pays  noth- 
ing, does  nothing;  he  simply  receives  a  benefit;  and  so  many 
of  the  courts  have  held  that  such  a  pledgee  should  acquire  no 
more  title  than  the  pledgor  had  to  the  property  pledged ;  that 
is,  if  the  property  had,  for  example,  been  fraudulently  acquired 
by  the  pledgor,  such  a  pledgee  could  not  hold  it  against  the 
rightful  owner.  In  short,  that  he  holds  it  subject  to  prior 
equities,  having  no  better  title  than  the  pledgor  had. 

It  would  no  doubt  be  profitable  to  discuss  some  of  the  many 
cases  that  have  been  decided  in  the  different  courts  touching 
this  question ;  but  we  can  only  notice  a  few  of  them  and  cite 
others. 

In  Pho&nix  Ins.  Co.  v.  Church  ^  this  question  was  considered. 
In  that  case  the  defense  was  that  the  note  was  accommodation 
paper  made  for  a  specific  purpose;  that  it  was  diverted  by  the 
payee,  and  was  received  by  the  plaintiff  on  account  of  a  pre- 
existing debt  only,  and  the  court  found  in  substance  that  the 
note  was  executed  by  defendant  without  consideration  for  the 
accommodation  of  the  payee,  and  for  the  specific  purpose  of 
taking  up  therewith  a  prior  accommodation  note  made  by  the 
defendant;  so  it  will  be  seen  that  there  would  have  been  a 

'81  N.  Y.  218;  Day  v.  Corldington,  438;  Lawrence  v.  Clark,  36  N.  Y.  128; 
5  Johns.  Ch.  54;  Comstock  V.  Hier,  73  Rosa  v.  Brotherson,  10  Wend.  85; 
N.  Y.  269;  Moore  v.  Rider,  65  N.  Y.     Weaver  v.  Harden,  49  N.  Y.  286. 

195 


§  244.]  PLEDGE    OR   PAWN.  [PAET    II. 

complete  defense  to  this  note  as  between  the  maker  and  the 
payee.  In  the  brief  for  appellant  very  many  authorities  are  cited 
to  the  effect  that,  the  note  having  been  diverted  to  the  injury 
of  the  maker  and  the  plaintiff  having  paid  nothing  for  it,  it 
was  not  commercial  paper  and  was  subject  to  all  the  equities 
existing  against  dishonored  paper.  The  court  in  its  opinion 
say:  "It  is  a  settled  law  of  this  state  that  prior  equities  of 
antecedent  parties  to  negotiable  paper,  transferred  in  fraud  of 
their  rights,  will  prevail  against  an  indorsee  who  has  received 
it  merely  in  nominal  payment  of  a  precedent  debt,  there  being 
no  evidence  of  an  intention  to  receive  the  paper  in  absolute 
discharge  and  satisfaction  beyond  what  may  be  inferred  from 
the  ordinary  transaction  of  accepting  or  receiving  it  in  pay- 
ment or  crediting  it  on  account.  The  law  regards  the  payment 
under  such  circumstances  as  conditional  only,  and  the  right  of 
the  creditor  to  proceed  upon  the  original  indebtedness  after  the 
maturity  is  unimpaired." 

The  Massachusetts  courts  have  followed  this  doctrine.  In 
Spaulding  v.  Kendrick^  the  court  say:  "The  law  of  the  case  is 
settled  by  numerous  decisions.  If  a  thief  gave  stolen  money 
or  negotiable  securities,  before  their  maturity,  in  payment 
of  his  debt,  or  as  security  for  it,  to  one  who  in  good  faith  re- 
ceives the  money  or  security  as  belonging  to  him,  the  creditor 
can  hold  the  property  as  against  the  true  owner.  As  between 
the  payer  and  the  payee  there  is  no  mistake  which  affects  the 
validit}^  of  the  transaction.  One  receiving  money  or  negotia- 
ble securities  in  pa3'^ment  of  or  as  security  for  an  existing  debt 
is  not  bound  to  inquire  where  the  money  or  securities  were  ob- 
tained. It  is  better  that  money  or  a  negotiable  security,  pass- 
ing from  hand  to  hand  to  one  who  rightly  receives  it  for  a 
valuable  consideration,  should  carry  on  its  face  its  own  creden- 
tials.^ It  has  often  been  decided  in  this  commonwealth  that  a 
pre-existing  debt  is  a  valuable  consideration  for  a  payment 
made  or  a  security  given  on  account  of  it."  * 

1172  Mass.  71.  Jaques  v.  Marquand,  6  Cowen,  497; 

2  Merchants' Ins.  Co.  v.  Abbott,  131  Dunlap  v.  Limes,  49  Iowa,  177.  See 
Mass.  397;  Lime  Rock  Bank  V.  Plump-  also  Mason  v.  Waite,  17  Mass.  560, 
ton,  17  Pick.  159;  Greenfield  School  563;  Worcester  Co.  Bank  v.  Dor- 
District  V.  First  Nat.  Bank.  102  Mass.  Chester  &  Milton  Bank,  10  Cush.  488. 
174;  Thatclier  v.  Pray,  113  Mass.  291;        3  Blanchard  v.  Stevens,  3  Cush.  162; 

196 


CH.   II.]  PLEDGING    NEGOTIABLP]    PAPER.  [§   241. 

In  Goodman  v.  ConMing^  it  was  held  "that  where  some  se- 
curity for  the  payment  of  the  pre-existing  debt  was  surrendered 
in  consideration  of  a  new  note  given  in  security  for  the  pay- 
ment of  the  debt,  that  the  plaintiff  became  a  hona  fide  holder 
for  value,  and  that  this  consideration  was  sufficient  to  exclude 
prior  equities."  In  the  brief  of  counsel  authorities  will  be  found 
cited  sustaining  this  proposition. 

In  Mayer  et  al.  v.  Heidelback  et  al.^  it  was  held  "  that  the 
actual  and  absolute  extinguishing  of  the  debt  in  considera- 
tion of  the  transfer  of  negotiable  paper  is  sufficient  to  ren- 
der the  transferee  a  holder  for  value  within  the  rules  pro- 
tecting such  a  holder  against  prior  equities."  Among  other 
tilings  the  court  say:  "The  respondents  rely  upon  two  proposi- 
tions which  have  thus  far  prevailed:  (1)  That  the  actual  pay- 
ment and  absolute  discharge  of  an  antecedent  debt  is  a  valuable 
consideration  for  the  transfer  of  commercial  paper,  and  cuts 
off  prior  equities.  ...  I  have  no  doubt  as  to  the  soundness 
of  the  first  proposition.  It  was  explicitly  conceded  in  Cod- 
dington  v.  Bay^^  which  originated  the  difference  between  the 
courts  of  this  state  and  the  concurring  views  of  the  federal 
court  and  those  of  England.  While  it  was  in  that  case  ruled 
that  the  transfer  of  negotiable  paper  as  collateral  security 
merely  for  an  antecedent  debt  did  not  make  the  creditor  a 
holder  for  value  within  the  rule  cutting  off  prior  equities,  it  was 
yet  asserted  that  such  result  followed,  where,  among  other 
things,  some  existing  debt  was  satisfied  thereby.  And  that,  I 
think,  was  a  natural  and  logical  conclusion  from  the  reasoning 
upon  which  the  decision  rested.  The  argument  was  that  the 
holder  of  the  paper  merely  as  collateral  lost  nothing  by  its 
failure,  since  his  debt  all  the  time  remained,  his  original  position 
was  unchanged,  and  he  had  simply  failed  to  get  an  added  se- 
curity, himself  parting  with  nothing.  It  is  apparent  that  the 
reasoning  fails,  whenever,  as  a  result  of  the  new  contract,  the 
original  debt  has  been  actually  extinguished,  when  the  paper 
received  has  been  both  transferred  and  accepted  as  payment, 

Fisher  v.  Fisher,  98  Mass.  303;  Good-    Mass.  158;  National  Revere  Bank  v. 
win  V.  Massacliusetts  Loan  &  Trust    Morse,  163  Mass.  383. 
Co.,  152  Mass.  189;  Mercliants'  Nat.        185N.  Y.  21. 
Bank  v.  Haverhill  Iron  Works,  159        ^23  N.  Y.  333. 

35  John.  57. 
197 


§  244.]  PLEDGE    OR    PAWN.  [PART    11. 

and  the  debt  has  been  discharged  within  and  by  force  of  the 
acts  and  concurring  intention  of  both  parties.  And  so  we  have 
steadily  decided." 

An  early  case  in  the  United  States  supreme  court  decided  by 
Judge  Story  lays  down  a  different  doctrine.  In  the  case  of 
Swift  V.  Tyson'^  the  court  say:  "It  becomes  necessary  for  us, 
therefore,  upon  the  present  occasion,  to  express  our  own  opinion 
of  the  true  result  of  the  commercial  law  upon  the  question 
now  before  us.  And  we  have  no  hesitation  in  saying  that  a 
pre-existing  debt  does  constitute  a  valuable  consideration  in 
the  sense  of  the  general  rule  already  stated,  as  applicable  to 
negotiable  instruments.  Assuming  it  to  be  true  (which,  how- 
ever, may  well  admit  of  some  doubt  from  the  generality  of  the 
language)  that  the  holder  of  a  negotiable  instrument  is  un- 
affected with  the  equities  between  the  antecedent  parties  of 
which  he  has  no  notice  only  where  he  receives  it  in  the  usual 
course  of  trade  and  business  for  a  valuable  consideration,  before 
it  becomes  due,  we  are  prepared  to  say  that  receiving  it  in 
payment  of  or  as  security  for  a  pre-existing  debt  is  according 
to  the  known  usual  course  of  trade  and  business.  And  why, 
upon  principle,  should  not  a  pre-existing  debt  be  deemed  such 
a  valuable  consideration?  It  is  for  the  benefit  and  convenience 
of  the  commercial  world  to  give  as  wide  an  extent  as  prac- 
ticable to  the  credit  and  circulation  of  negotiable  paper,  that 
it  may  pass  not  only  as  security  for  new  purchases  and  advances, 
made  upon  transfer  thereof,  but  also  in  payment  of  and  as 
security  for  pre-existing  debts.  The  creditor  is  thereby  enabled 
to  realize  or  secure  his  debt,  and  thus  may  safely  give  a  pro- 
longed credit  or  forbear  from  taking  any  legal  steps  to  enforce 
his  rights.  The  debtor  also  has  the  advantage  of  making  his 
negotiable  securities  of  equivalent  value  to  cash.  But  establish 
the  opposite  conclusion,  that  negotiable  paper  cannot  be  applied 
in  payment  of  or  as  security  for  pre-existing  debts,  without  let- 
ting in  all  the  equities  between  the  original  and  antecedent 
parties,  and  the  value  and  circulation  of  such  securities  must 
be  essentially  diminished,  and  the  debtor  driven  to  the  embar- 
rassment of  making  a  sale  thereof,  often  at  a  ruinous  discount 
to  some  third  person,  and  then  by  circuity  to  apply  the  pro- 
ceeds to  the  payment  of  his  debts.     "What,  indeed,  upon  such 


1 16  Pet.  1;  14  U.  S.  (Curtis),  166. 
198 


J 


CII.  n.]  PLEDGING  NEGOTIAULE  PAPEK.  [§  244. 

a  doctrine,  would  become  of  that  large  class  of  cases  where  new 
notes  are  given  by  the  same  or  by  other  parties,  by  way  of  re- 
newal or  security,  to  banks  in  lieu  of  old  securities  discounted 
by  them  which  have  arrived  at  maturity?  Probably  more  than 
one-half  of  all  bank  transactions  in  our  country,  as  well  as 
those  of  other  countries,  are  of  this  nature.  The  doctrine  would 
strike  a  fatal  blow  at  all  discounts  of  negotiable  securities  for 

pre-existing  debts." 

199 


CHAPTER  III. 


NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE  INSTRUMENTS. 


245. 

The  nature  and  effect  of  such 

§  260. 

Bona  fide  holder  from  agent 

instruments. 

of  owner,  or  one  having  ap- 

246. 

The    pledging    of    corporate 

parent  title. 

stock. 

261. 

The  warehouse  receipt  as  col- 

247. 

What  deemed  sufficient  deliv. 

lateral. 

ery  by  pledgor  to  pledgee. 

262. 

Delivery   of    the    receipt   re- 

248. 

Transfer  in  blank. 

quired —  Indorsement    in 

249. 

Legal  and  equitable  title. 

blank. 

250. 

How  affected  by  charter  and 

263. 

Pledge  created  by  mere 

by-laws  of  the  company. 

delivery  of  receipt. 

251. 

The     pledgee     protected    as 

264. 

Statutes  of  states,  with  refer- 

against creditors. 

ence   to   pledgee    of   ware- 

252. 

The  pledgee  of  stock  by  in- 

house receipt. 

dorsement  may  transfer  the 

265. 

If  the  receipt  is  made  to 

title. 

bearer. 

253. 

Bills    of    lading    subjects   of 

266. 

Insurance  policies   as  collat- 

pledge. 

eral. 

254. 

Delivery  by  the  pledgor. 

267. 

Delivery  a  requisite. 

255. 

Mere  delivery  of  the  bill  suf- 

268. 

How  delivered. 

ficient. 

269. 

By  indorsement  in  blank  and 

256. 

Bill   of   lading   to   consignee 

delivery. 

with  draft  attached. 

270. 

Notes    and    mortgages,    and 

257. 

A  bill  of  lading,  how  far  nego- 

bonds and  mortgages. 

tiable. 

271. 

Mere  delivery  as  a  pledge. 

258. 

Who  are  bona  fide  holders  of 

272. 

Full,     complete     assignment 

bills  of  lading. 

and  transfer. 

259. 

Rights  of  bona  fide  holders. 

373. 

Pledge     distinguished     from 
chattel  mortgage. 

§245.  The  nature  aiul  effect  of  such  instruments. —  In- 
struments that  are  non-negotiable,  simpl}'^  the  evidence  of 
ownership  of  certain  interests  or  property,  may  be  the  subject 
of  the  pledge.  While  these  instruments  cannot  be  said  to  be 
the  property  itself,  they  are  the  indicia  of  ownership,  the 
muniments  of  title  known  and  recognized  in  the  business 
world,  bought,  sold  and  pledged  as  property  for  the  reason 
that  they  represent  property,  and  by  their  transfer  the  prop 
erty  they  represent  is  transferred.  "We  cannot  discuss  or  even 
mention  every  class  of  non-negotiable  instruments  known  and 

200 


Cri.    III.]  NON-NEGOTIABLK    AND    QUASI-NEGOTIABLE.  [§   24<3. 

recognized  in  business,  as  it  would  consume  too  much  space;  but 
only  a  few  of  them  —  those  most  commonly  known  and  used. 
Among  these  may  be  mentioned  stocks  of  corporations,  bills 
of  lading,  warehouse  receipts,  insurance  policies,  mortgages 
and  savings  bank  books. 

§246.  The  pledging  of  corporate  stock. —  Because  of  the 
rule  that  a  valid  pledge  requires  a  delivery  of  the  property  by 
the  pledgor  to  the  pledgee,  and  an  acceptance  and  continued 
possession  by  the  pledgee,  it  has  not  always  been  thought  that 
stock  in  a  corporation  could  be  the  subject  of  a  pledge;  but 
opinions  upon  that  subject  have  changed,  and  there  is  no  longer 
any  question  as  to  such  property  being  the  subject  of  a  pledge. 
The  certificate  of  stock,  of  course,  is  not  the  property  itself, 
but  it  represents  the  property;  and  the  holder  of  the  certificate, 
by  reason  of  it,  is  the  holder  and  possessor  of  the  certain  prop- 
erty interests  in  the  property  of  the  corporation  which  the  cer- 
tificate represents,  whether  it  be  personalty  or  realty;  and 
those  interests  so  represented  by  the  stock  certificate  may  be 
purchased,  sold  and  transferred  by  the  transfer  of  the  certifi- 
cate of  stock.  This  being  true,  it  certainly  follows  that  corporate 
stock  may  be  the  subject  of  a  pledge. 

The  court  in  Brewster  v.  Hartley^  say:  "A  delivery  to  the 
pledgee  of  the  thing  pledged  is  essential  to  the  contract,  and 
until  that  act  is  performed  the  special  property  that  the  bailee 
is  entitled  to  hold  does  not  vest  in  him.  In  respect  to  most 
kinds  of  property,  a  delivery  of  the  property  to  the  pledgee, 
without  any  written  transfer  of  the  title,  is  sufficient  to  pass 
the  requisite  special  property.  Incorporeal  property,  being 
incapable  of  manual  delivery,  cannot  be  pledged  Avithout  a 
written  transfer  of  the  title.  Debts,  negotiable  instruments, 
stocks  in  incorporated  companies,  and  c hoses  in  action  gen- 
erally, are  pledged  in  that  mode.  Such  transfer  of  the  title 
performs  the  same  office  that  the  delivery  of  possession  does 
in  case  of  a  pledge  of  corporeal  property.  The  transfer  of  the 
title,  like  the  delivery  of  possession,  constitutes  the  evidence 
of  the  pledgee's  right  of  property  in  the  thing  pledged.     The 

1  87  Cal.  15-25.     In  Wilson  v.  Lit-    more  than  a  lej?al  right  to  the  resto- 
tle,  2  N.  Y.  44:3,  tlie  court  say:  "Tlie     ration  of  the  thing  pledged  on  pay- 
general  property  which  the  pledgor     meut  of  the  debt." 
is  said  usually  to  retain   is  nothing 

201 


§§  247,  24:8.]  PLEDGE    OR    PAWN.  [PART    11, 

transfer  in  writing  of  shares  of  stock  not  only  does  not  prove 
that  the  transaction  is  not  a  pledge,  but  the  stock,  unleaj  it  is 
expressly  made  assignable  by  the  delivery  of  the  certificates, 
cannot  be  pledged  in  any  other  manner." 

§  247.  What  deemed  sufflcieiit  delivery  by  pledgor  to 
pledgee. —  Delivery  and  possession  of  the  pledged  property  is 
as  much  of  an  essential  when  stock  in  a  corporation  is  the 
subject  of  the  pledge  as  in  any  other  case.  If  the  stock  is 
regularly  transferred  by  indorsement  and  upon  the  books  of 
the  company,  and  is  held  by  the  pledgee  as  a  pledge,  there  can 
be  no  doubt  of  the  sufficiency  of  such  a  transfer  and  delivery; 
and  when  so  held  in  good  faith  by  the  pledgee  as  security  for 
the  payment  of  a  debt,  or  the  performance  of  an  obligation, 
the  law  will  protect  the  pledgee's  holding  and  security,  not 
only  as  against  the  pledgor,  but  also  against  all  persons  claim- 
ing from  or  under  him.  It  is  not,  however,  necessary  that  the 
stock  should  be  transferred  on  the  books  of  the  company  ex- 
cept under  certain  circumstances,  to  protect  the  pledgee  against 
creditors  or  subsequent  purchasers  in  good  faith,  because  the 
certificate  indorsed  in  blank  and  delivered  to  the  pledgee  would 
he  prima  facie  evidence  of  ownership,  and  a  presentation  to 
the  proper  officers  of  the  company  of  a  certificate  so  indorsed 
would  entitle  the  holder  to  have  the  stock  transferred  to  him. 
The  indorsement  in  blank  of  the  certificate  of  stock  by  the 
owner  authorizes  the  person  to  whom  he  delivers  it  with  inten- 
tion to  transfer  it  or  pledge  it,  or  his  assigns,  w^hether  pledgee 
or  vendee,  to  write  over  the  signature  of  the  owner  indorsed 
upon  the  stock  certificate  a  full  assignment  of  the  stock,  with 
directions  to  transfer  the  same  upon  the  books  of  the  company.^ 

§  24:8.  Transfer  in  blank. —  As  we  have  seen,  stock 

certificates  may  be  transferred  by  indorsement  in  blank  and 
deliver}^  of  the  certificate.  This  manner  of  transfer,  no  doubt, 
grows  out  of  the  demand  that  business  usage  has  made.  Espe- 
cially is  this  manner  of  transfer  and  delivery  applicable  to  the 
subject  under  consideration.  It  is  not  the  desire  of  the  pledgor 

1  German  Union  Ass'n  Bldg.  v.  which  may  be  filled  up  bj'tlie  holder 
Sendmej^er,  50  Pa.  St.  67;  Mt.  Holly,  by  writing  an  assignment  and  a 
etc.  Turnpike  Co.  v.  Ferree,  17  N.  J.  power  of  attorney  over  the  signature 
Eq.  117.  A  certificate  of  stock  is  indorsed.  Kortright  v.  Commercial 
transferable  by  a  blank  indorsement    Bank,  20  Wend.  91. 

202 


CH.  III.]  NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE,  [§  248. 

to  transfer  his  stock  absolutely  upon  the  books  of  the  com- 
pany; he  simply  desires  to  make  such  a  delivery  of  the  stock 
as  will  be  security  in  the  hands  of  the  pledgee  for  the  payment 
of  the  debt  or  the  performance  of  the  undertaking.  And  so  it 
has  become  to  be  a  well  settled  usage  recognized  and  practiced, 
to  execute  a  pledge  of  stock  as  security  by  delivery  of  the  cer- 
tificate of  shares  indorsed  in  blank. 

In  the  case  of  Kortriglit  v.  Commercial  Bank  of  Buffalo} 
it  appeared  that  by  the  by-laws  of  the  company  the  stock  was 
transferable  only  upon  the  books  of  the  company;  that  the 
owner  of  certain  shares  of  bank  stock  thus  transferable  sent 
his  certificate  with  a  blank  power  of  attorney  under  seal,  and 
his  own  promissory  note,  to  an  agent  to  be  used  in  obtaining  a 
loan.  The  loan  was  subsequently  obtained  upon  these  securi- 
ties by  the  agent,  who  absconded  with  the  money.  The  pledgee 
filled  up  the  blank  transfer  and  power  of  attorney  over  the 
signature  of  the  owner,  and  demanded  a  transfer  of  the  shares 
to  himself  upon  the  books  of  the  bank,  which  the  bank  refused 
to  allow.  In  a  suit  by  the  pledgee  against  the  bank  upon  such 
refusal,  the  pledgee  was  held  to  be  entitled  to  recover.  Chief 
Justice  Nelson,  speaking  for  the  court  in  denying  a  motion  for 
a  new  trial,  said  that  the  filling  up  of  the  blank  transfer  over 
the  signature  of  the  owner  indorsed  upon  the  certificate  and 
the  power  of  attorney  was  in  "  strict  conformity  with  the  uni- 
versal usage  of  dealers  in  the  negotiation  and  transfer  of  stock 
according  to  the  proof  in  the  case.  Even  without  the  aid  of 
this  usage  there  could  be  no  great  difficulty  in  upholding  the 
assignment.  The  execution  in  blank  must  have  been  for  the 
express  purpose  of  enabling  the  holder,  whoever  he  might  be, 
to  fill  it  up.  If  intended  to  have  been  filled  up  in  the  name  of 
the  first  transferee,  there  would  have  been  no  necessity  for  its 
execution  in  blank;  the  owner  might  have  completed  the  in- 
strument. The  usage,  however,  is  well  established,  and  was 
fully  understood  by  the  owner,  as  he  made  the  transfer  in  con- 
formity to  it,  and  he,  or  those  setting  up  a  claim  under  him, 
should  not  be  permitted  to  deny  its  validity.  The  filling  up 
is  but  the  execution  of  an  authority  clearly  conveyed  to  the 
holder;  is  lawful  in  itself,  and  convenient  to  all  parties,  as  it 

1 20  Wend.  91. 
203 


§  249.J  PLEDGE    OK   PAWN.  [pAKT    II. 

avoids  the  necessity  of  needlessly  multiplying  transfers  upon 
the  books." 

§  2i9.  Legal  and  eciuitable  title. —  There  is  some  disagree- 
ment among  the  authorities  as  to  what  establishes  a  legal  title 
to  corporate  stock;  that  is  to  say,  just  what  kind  of  a  transfer 
is  necessary  to  transfer  the  legal  title  to  the  stock,  and  what 
transfers  are  demanded  to  simply  transfer  the  equitable  title. 
Is  it  necessary  in  order  to  establish  a  legal  title  that  the  trans- 
fer of  stock  shall  be  entirely  filled  out  authorizing  the  secre- 
tary of  the  company  to  transfer  the  stock  upon  the  corporate 
books,  signed  by  the  owner  and  delivered,  and  these  followed 
by  an  actual  transfer  upon  the  books  of  the  company;  or  will 
a  simple  delivery  of  the  certificate  of  stock  indorsed  in  blank, 
or  the  assignment  and  authorization  to  transfer  the  stock  made 
out  and  signed  by  the  owner  and  delivered,  be  sufficient  to 
confer  upon  the  holder  a  legal  title?  If  the  stock  is  trans- 
ferred by  a  written  assignment  and  power  to  transfer  upon 
the  books,  duly  signed  by  the  owner,  accepted  and  transferred 
in  accordance  with  the  directions  upon  the  books  of  the  com- 
pany, there  can  be  no  doubt  that  such  a  transfer  of  the  stock 
confers  upon  the  transferee  a  legal  title;  and  many  of  the  au- 
thorities hold  that  the  other  methods  mentioned  will  transfer 
only  an  equitable  title. 

In  JSlt.  Holly  ^  etc.  Turnjpike  Co.  v.  Ferree  etal.^  the  court  say: 
"  The  certificate  of  stock,  accompanied  by  the  powder  of  attor- 
ney authorizing  the  transfer  of  the  stock  to  any  person,  is 
prima  facie  evidence  of  equitable  ownership  in  the  holder,  and 
renders  the  stock  transferable  by  the  delivery  of  the  certificate, 

1  17  K  J.  Eq.  117;  Hunterdon  Co.  value  for  tbeni  without  notice  of 
Bank  v.  Nassau  Bank,  17  N.  J.  Eq.  any  intervening  equity,  his  title  as 
496.  In  this  case  the  court  say:  such  owner  cannot  be  impeached." 
"  Considerations  of  commercial  con-  Bank  of  America  v.  McNeil,  10  Bush 
venience  and  public  policy  suggest  (KJ^),  54  In  this  case  the  court  speaks 
the  true  rule  upon  this  subject,  of  an  assignment  of  the  certificate 
Where  a  certificate  of  shares  of  stock  with  power  to  transfer,  where  the 
in  an  incorporated  company,  accora-  corporation's  charter  provides  for  a 
panied  by  an  irrevocable  power  of  transfer  upon  its  books,  as  a  symbol- 
attorney  from  the  owner  to  transfer  ical  delivery  of  the  stock,  effectual 
them,  either  filled  up  or  in  blank,  are  against  persons  having  actual  notice 
in  the  hands  of  the  third  partj^  he  is  of  it.  State  Ins.  Co.  v.  Sax,  2  Tenn. 
presumptively  the  equitable  owner  Ch.  507;  Bruce  v.  Smith,  44  Ind.  1,  5. 
of  the  shares,  and  if   he  has  given 

204 


CH.  III.]  NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE.  [§   249. 

and  when  the  party  in  whose  hands  the  certificate  is  found  is 
shown  to  be  a  holder  for  value  without  notice  of  any  interven- 
ing equity,  his  title  as  such  owner  cannot  be  impeached.  The 
holder  of  the  certificate  may  insert  his  own  name  in  the  power 
of  attorney  and  execute  the  power  and  thus  obtain  the  legal  title 
to  the  stock  whenever  the  loan  for  which  it  was  hypothecated 
comes  due,  or  whenever  by  the  terms  of  his  contract  he  be- 
comes entitled  to  the  stock;  and  such  a  power  is  not  limited  to 
the  person  to  whom  it  was  first  delivered,  but  inures  to  the 
benefit  of  each  hona^de  hoWer  into  whose  hands  the  certificate 
and  power  may  pass;  and  the  title  of  the  holder  is  in  no  wise 
affected  b}'^  a  provision  in  the  charter  or  by-laws  of  the  corpo- 
ration that  the  stock  is  transferable  only  on  the  books  of  the 
corporation;  such  provision  is  intended  merely  for  the  protec- 
tion and  benefit  of  the  corporation.  These  principles  have  been 
repeatedly  recognized  by  the  courts  of  other  states,  and  in  com- 
mercial cities,  and  constitute  the  basis  of  daily  business  trans- 
action." 

It  can  hardly  be  said,  however,  that  this  doctrine  is  supported 
by  the  weight  of  authority.  In  the  case  of  Cushman  v.  Thayer 
Mfg.  Co}  the  action  was  brought  to  compel  the  defendant  to 
transfer  upon  its  books  certain  shares  of  stock  to  the  plaintiff, 
and  issue  a  new  certificate  for  the  same  to  her.  The  court,  in 
its  opinion,  say:  "  A  court  of  equity  will  enforce  a  specific  per- 
formance of  a  contract  for  the  sale  of  real  estate,  and  compel 
the  execution  of  a  deed  by  the  vendor  to  the  vendee,  although 
an  action  at)  law  may  be  brought  to  recover  damages  for  the 
breach  of  the  contract.  Such  a  case  bears  a  striking  analogy 
to  the  one  now  presented,  and  the  same  principle  is  applicable 
where  the  remedy  at  law  is  inadequate  to  furnisli  the  proper 
relief.  That  an  equitable  action  will  lie  in  such  a  case  has 
been  distinctly  recognized  in  a  number  of  the  adjudicated 
cases  in  this  state  "  (citing  authorities).  And  again  the  court 
sa}'^:  "The  delivery  of  the  certificates,  as  between  the  owner 
and  assignee,  with  the  assignment  and  power  indorsed,  passes 
the  entire  legal  and  equitable  title  in  the  stock,  subject  only  to 
such  liens  or  claims  as  the  corporation  may  have  upon  it.^  Any 
act  suffered  by  the  corporation  that  invested  a  third  party  with 

176  N.  Y.  365.  N.  Y.  325;  N.  Y.  &  N.  H.  R.  Co.  v. 

2  McNeil  V.  Tenth   Nat.  Bank,  46    Schuyler,  34  id.  30,  80. 

205 


§  250.]  PLEDGE    OR    PAWN.  [PART    II. 

the  ownership  of  the  shares,  without  due  production  and  sur- 
render of  the  certificate,  rendered  it  liable  to  the  owner;  and 
it  was  its  duty  to  resist  any  transfer  on  the  books  without  such 
production  and  surrender."^  But  for  the  purposes  of  our  dis- 
cussion it  is  not  material  whether  the  title  created  is  equitable 
or  legal,  for  it  is  well  settled  that  delivery  of  stock,  indorsed 
in  any  of  the  ways  mentioned,  will  support  a  pledge;  that  be- 
tween the  parties  such  a  delivery  and  indorsement  will  trans- 
fer the  title,  and  it  is  not  necessary  to  that  end  that  there  should 
be  a  transfer  upon  the  books  of  the  company.  In  Johnston  v. 
Lajlln'^  the  court  held  that,  as  between  the  parties,  the  title  to 
sliares  of  the  capital  stock  of  a  national  bank  passes  when  the 
owner  delivers  his  stock  certificate  to  the  purchaser  with  au- 
thority to  him,  or  any  one  whom  he  may  name,  to  transfer 
them  on  the  books  of  the  bank. 

§  250.  How  aifected  by  charter  and  by-laws  of  the  com- 
pany.—It  cannot  be  said  that  a  by-law  of  a  company  which 
requires  that  the  stock  shall  be  transferred  upon  its  books,  or 
a  charter  of  a  company  prescribing  the  mode  in  which  the 
stock  shall  be  transferred,  are  unimportant.  There  is  no  doubt 
but  that  this  regulates  the  respective  rights  of  the  corporation 
and  the  individual  stockholders,  and  it  is  held  that  a  holder 
of  a  certificate  of  stock  indorsed  in  blank  cannot  assert  a  legal 
title  against  the  corporation  itself  without  such  a  transfer  upon 
its  books.*  As  we  have  seen,  this  does  not  affect  the  title  to 
the  stock  as  between  the  owner  and  the  pledgee,  or  the  holder 
by  indorsement  in  blank;  it  is  simply  a  regulation  which  the 
company  may  insist  upon  being  carried  out  by  its  stockhold- 
ers. The  company,  however,  could  not  legally  refuse,  upon 
presentation  of  such  a  certificate  duly  indorsed,  to  transfer  the 
stock,  and  if  it  should  refuse  it  could  be  compelled  to  make 
the  transfer  upon  its  books. 

1  Smith  V.  Am.  Coal  Co.,  7  Lans.  217;  Carroll  v.  MuIIanphy  Sa v.  Bank, 
317;  Leitch  v.  Wells,  48  N.  Y,  585;  8  Mo.  App,  249;  Johnston  v.  Under- 
Grymes  v.   Hone,  49  N.  Y,  17;  Hoi-  bill,  52  N.  Y.  203. 
brook  V.  N.  J.  Zinc  Co.,  57  N.  Y.  623.  2 103  U.  S.  800. 
In  this  case  it  was  held  that  "one  3  Beecber  v.  Wells  Flouring  Mill 
who  takes  an  assignment  of  a  stock  Co.,  1  Fed.  Rep.   276;  Laing  v.   Bur- 
certificate  as  between  him  and  the  ley,   101   111.  551;  Oatis  v.   Gardner, 
transferrer  takes  tbe    whole    title,  105  111.  436;  People  v.  Robinson,  64 
both  legal  and  equitable."  Cecil  Nat.  Cal.  373. 
Bank  v.  Watsontown  Bank,  105  U.  S. 

206 


J 


-en.   in.]  KOX-NEGOTIABLE    AKD    QUASI-NEGOTIABLE.  [§   251. 

In  Smith  v.  Crescent  City  Live  Stock  Co}  the  court  say :  "  The 
by-laws  which  require  transfers  of  stock  to  be  recorded  on  the 
books  of  the  corporation  regulate  merely  the  respective  rights 
of  the  corporation  and  the  individual  stockholders;  no  one  can 
claim  to  be  a  stockholder  and  to  exercise  the  rights  of  a  cor- 
porator in  virtue  of  a  sale  of  stock  to  him  until  the  corpora- 
tion has  taken  cognizance  of  tlie  sale,  and  by  transfer  on  its 
books  has  substituted  the  purchaser  for  the  seller.  "Whether 
one  has  acquired  the  character  and  the  rights  of  a  corporator 
is  a  question  to  be  determined  by  the  laws  of  the  corporation. 
Whether  a  purchaser  has  acquired  .  ,  ,  a  good  and  perfect 
title  to  any  property,  tangible  or  intangible,  is  a  question  to  be 
solved  by  the  laws  of  the  state,  applicable  to  the  sale  and 
transfer  of  such  objects." 

As  between  the  stockholder  and  the  corporation,  the  records 
of  the  corporation  furnish  the  evidence  of  their  relation,  and 
in  the  case  of  People  v.  Rohinson  ^  it  was  held  that  "  a  transfer 
not  entered  on  the  books  of  the  company  has  no  validity  out- 
side of  the  parties  to  such  transfer.  If  not,  could  it  affect  the 
validity  of  an  election  at  which  trustees  of  the  company  were 
elected  ?  If  so,  would  not  a  transfer,  although  not  entered  on 
the  books  of  the  company,  be  valid  outside,  of  the  parties  to 
such  transfer?  The  construction  which  we  feel  compelled  to 
give  to  this  clause  is,  that  a  transfer  of  stock,  until  entered 
upon  the  books  of  the  company,  confers  on  the  transferee,  as 
between  himself  and  the  company,  no  right  beyond  that  of 
having  such  transfer  properly  entered.  Until  that  is  done,  or 
demanded  to  be  done,  the  person  in  whose  name  the  stock 
is  entered  on  the  books  of  the  company  is,  as  between  himself 
and  the  company,  the  owner  to  all  intents  and  purposes,  and 
particularly  for  the  purpose  of  an  election."* 

§251.  The  pledgee  protected  as  against  creditors. —  At 
common  law  the  delivery  of  the  certificate  of  stock,  with  the 
power  to  transfer  on  the  books  of  the  company,  is  a  sufficient 
delivery,  and,  when  there  is  no  statute  to  the  contrary,  such  a 

130  La.  1378-82;  Litner's   Appeal,  Manufacturing  Iron  Co.,  11  Wend. 

m  Pa.  St.  301.  627;  Bank  of  Buffalo  v.  Kortright,  22 

2  64  Cal.  373.  Wend.  348;  State  of  Nevada  v.  Pet- 

3  State  V.  Ferris,  42  Conn.  560;  Hop-  tineli,  10  Nev.  141. 
pin  V.  Buffum,  9  R.  L  513;  Gilbert  v. 

207 


§  -51.]  PLEDGE    OK    PAWN.  [PART    11. 

transfer  of  stock  will  carry  the  entire  title  as  against  outside 
equities  and  creditors  of  the  pledgor.^  In  many  of  the  states, 
liowever,  there  are  statutes  expressly  providing  that  such  trans- 
fer shall  not  be  good  against  creditors  unless  it  is  transferred 
upon  the  books  of  the  company.  In  such  states  the  courts,  fol- 
lowing the  statutes,  have  held  that  in  order  that  a  pledgee  be 
protected  against  the  creditors  of  the  pledgor  it  is  necessary 
that  the  stock  delivered  to  him  in  pledge  shall  be  transferred 
upon  the  corporate  books. 

A  very  full  discussion  may  be  found  in  the  case  of  Scott  v. 
Pequonnock  Nat.  Bank?  The  stock  in  this  case  (bank  stock) 
had  been  sold  and  transferred  by  indorsement  and  written  as- 
signment and  power  of  attorney,  but  had  not  been  transferred 
upon  the  books  of  the  compan}^;  it  was  levied  upon  by  a  cred- 
itor of  the  transferrer;  the  transferee  brought  an  action  at  law 
to  recover  damages  from  the  defendant  corporation  for  refusal 
to  allow  a  transfer  upon  its  books.  The  court  say,  among  other 
things:  "In  the  absence  of  a  statute  or  of  a  provision  in  the 
charter,  or  of  a  by-law  passed  in  pursuance  of  authority  con 
ferred  by  the  charter,  prescribing  the  exclusive  manner  in 
which  the  stock  of  a  corporation  shall  be  transferred,  the  stock 
owner  has  a  right  to  transfer  such  property  to  a  purchaser  by 
the  delivery  of  the  stock  certificate  with  a  written  assignment 
thereof.  The  title  of  a  'bona  fide  purchaser  to  whom  such  cer- 
tificate and  assignment  have  been  delivered  will  not  be  divested 
by  the  subsequent  attachment  of  the  stock  at  the  suit  of  the 
creditor  of  the  vendor.  In  some  of  the  states  statutes  have 
been  passed  and  provisions  have  been  inserted  in  the  charters 
of  the  corporations,  prescribing,  either  expressly  or  by  implica- 
tion, an  exclusive  method  of  transfer.  .  .  .  The  Connecticut 
decisions,  especially  the  earlier  ones,  which  were  made  at  a 
time  when  the  riohts  of  attaching;  creditors  were  stronolv 
favored,  were  to  the  effect  that  'in  cases  where  the  legislature 
in  the  act  of  incorporation  either  prescribe  the  mode  of  trans- 

1  Boston  Music  Hall  Ass'n  v.  Cory,  absence  of  an  express  provision   of 

129  Mass.  485.     In  this  case  it  was  statute,  or  of  the  charter  of  the  cor- 

held  a  sale  of  stock  in  a  corporation  poration,  requiring  such  transfer  to 

is    valid    against    a    siibsequent    at-  be  made.     Sergeant  v.  Franklyn  Ins. 

tached  creditor  of  the  seller,  although  Co.,  8  Pick.  (Mass.)  90;  Fisher  v.  Es- 

no  transfer  of  the  stock  is  made  on  sex  Bank,  5  Gray  (Mass.),  373. 
the  books  of  the  corporation,  in  the        2 15  ped.  494. 

208 


{ 


on.   III.]  NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE.  [§  251. 

ferring  the  stock,  or  authorize  the  company  to  do  it  in  their 
by-laws,  and  the  company  do  in  their  by-laws  prescribe  a  mode 
as  the  only  one  to  be  pursued,  that  mode  must  be  followed,  or 
the  legal  title  will  not  pass  by  an  assignment  which  would  be 
good  at  common  law  had  no  particular  and  exclusive  mode  of 
transfer  been  prescribed.'  "  ^ 

In  Fisher  v.  Essex  Bank  -  Chief  Justice  Shaw,  after  saying 
that  whatever  common-law  rules,  in  the  absence  of  any  express 
rule  of  law,  the  courts  have  adopted,  to  determine  what  action 
constitutes  the  actual  transfer  of  shares,  when  the  transfer  is 
so  regulated,  such  law  must  govern,  held  that  an  express  ])ro- 
vision  in  the  act  of  incorporation  of  a  bank  that  the  stock  should 
be  transferable  only  at  its  banking  house  and  on  its  books, 
makes  a  transfer  at  the  bank  imperative  as  against  an  attaching 
creditor  without  notice  of  previous  assignment  and  delivery  of 
the  certificate  to  a  purchaser.  The  reasoning  was  to  the  effect 
that  it  is  necessary  to  fix  some  act  and  some  period  of  time  at 
which  the  property  changes  and  vests  in  the  vendee,  and  that 
by  the  charter  the  transfer  at  the  bank  is  made  the  decisive 
act  of  passing  the  property  —  the  legal,  transferable,  attachable 
interest." 

From  the  cases  cited  and  quoted  from  it  will  be  observed 
that  the  courts  of  the  several  states  are  not  entirely  harmonious 
in  their  holdings  upon  this  question.  The  majority  of  the 
courts,  however,  have  held  that  a  transfer  of  stock  unrecorded, 
upon  the  books  of  the  company,  is  not  valid  as  against  cred- 
itors of  the  seller  when  the  charter  or  by-laws  of  the  corpora- 
tion or  the  statutes  of  the  state  require  such  record ;  this  is 
upon  the  theory  that  nothing  short  of  a  compliance  with  the 
provisions  of  the  charter,  by-laws  and  statutes  of  the  state 
would  be  a  constructive  notice  of  such  transfer,  or  sufficient 
to  validate  the  transaction  as  to  creditors  or  hona  fide  pur- 
chasers.^    But  the  courts  of  all  the  states  would  undoubtedly 

1  Colt  V.  Ives,  31  Conn.  25.  cliarter  of  the  corporation  provides 

25  Gray,  373.  the  manner  in  which  stocks  sliould 

3  Parrott  v.  Byers.  40  Cal.  614;  Nag-  be  transferable,  and  where  that  mode 

ler  V.  Pacific  Wharf  Co.,  20  Cal.  629;  of  transfer  was  simply  provided  in  its 

People  V.  Elmore,  35  Cal.   653.     In  by-laws.     Where  the  charter  regu- 

Massachusetts,  by  the  passage  of  the  lated  the  manner  of  transfer,  it  was 

statute  in  that  state  regulating  the  held  that  this  mode  must  be  followed 

transfer  of  stock,  the    courts  seem  to  pass  a  good  title  against  attaching 

to  have  held  differently  where  the  creditors.     Fisher  v.  Essex  Bank,  6 
14                                              209 


§  252.J  PLEDGE    OR    PAWlSr.  '  [PAET    U. 

feel  compelled  to  hold  that  an  actual  notice  that  a  transfer  had 
been  made  by  delivery  of  the  stock  duly  assigned,  with  power 
of  attorney  to  transfer  upon  the  books,  although  unregistered, 
would  be  as  effective  as  though  the  transfer  were  registered, 
and  Avould  supersede  the  rights  of  creditors  attaching  with  full 
knowledge  of  such  transfer.^ 

It  will  no  doubt  be  necessary  to  examine  the  statute  of  the 
state  in  which  the  contract  is  made  in  order  to  determine  the 
rights  of  the  pledgee  in  each  instance;  the  statutes  and  the 
holdino's  of  the  courts  of  the  different  states  beino:  so  varied 
that  it  is  impossible  to  lay  down  any  fixed  rule  governing  all 
transactions. 

§  252.  The  pledgee  of  stock  by  indorsement  may  transfer 
the  title.— As  has  been  said,  when  the  stock  is  indorsed  in 
blank  and  delivered  to  the  pledgee  as  a  pledge,  he  may  write 
over  the  indorsement  the  direction  and  power  necessary  to 
warrant  the  transfer  of  the  stock  upon  the  books  of  the  com- 
pany, and,  as  we  have  seen,  he  thus  becomes  at  least  the  appar- 
ent actual  owner  of  the  stock,  having  all  the  indicia  of  own- 
ership of  the  same;  he  is  therefore  enabled  to  confer  upon  a 
ho?ia  fide  purchaser,  paying  value  for  it,  a  good  title  even  as 
against  the  true  owner.  Such  a  title  as  between  the  owner 
and  the  pledgee  rests  upon  the  doctrine  of  estoppel;  the  true 
owner  having  conferred  upon  the  apparent  owner,  by  a  written 
transfer,  all  the  indicia  of  ownership  of  the  stock,  is  estopped 
from  impeaching  the  title  thus  conferred  and  asserting  his  own 
title;  the  rule  being  well  established,  that,  as  between  two 
innocent  parties,  he  who  has  made  it  possible  for  another  to 
commit  the  wrong  must  suffer;  and  it  has  been  held,  "  first,  that 
the  possession  of  certificates  of  corporate  stock,  which  bear 
the  proper  indorsement,  \%  j^rima  facie  evidence  of  ownership, 

Gray,  373;  Rock  v.  Nichols,  3  Allen,  v.  Gardner,  105  111.  435;  Clieever  v. 

343;  Blanchard  v.  Dedham  Gas  Co.,  Myer,  2  Vt.  66. 
12  Gray,  213.     Where  only  the   by-        i  Scripture    v.   Francistown    Soap 

laws  of  the  corporation  make  such  Co.,  50  N.  H.  371.     In  Newberry 

provision,  a  transfer  of  stock  with-  Detroit,  etc.   Co.,   17  Mich.   141.  the 

out    registration   or  transfer    upon  court  held  that  '•  a  transfer  of  stockj 

the  books,  held  good  against  attach-  whether  recorded  or  not,  convej's  the 

ing   creditors   without  notice.     Ser-  interest  of  the  holder,  and  is  valic 

geant  v.  Essex  Ry.  Co.,  9  Pick.  202;  except  as  against  persons  having equi'l 

Sergeant  v.  Franklin  Ins.  Co.,  8  Pick,  ties:  and  a  judgment  creditor  by  ai 

90.     See  also  Sibley  v.  Quiusigmond  execution   sale   with   notice   of  the 

Nat.  Banlc,  133  Mass.  515;  Shipman  transfer  can  get  no  better  title  thai 

V.  ^tna  Ins.  Co.,  29  Conn.  245;  Oatis  his  debtor  has." 


CH.   III.]  NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE.  [§  252. 

and  that  the  holder  for  value  without  notice  of  prior  equities 
obtains  a  perfect  title  as  against  such  equities;  second,  if  the 
rightful  owner  has  invested  another  with  the  usual  evidence 
of  title  or  an  apparent  authority  to  dispose  of  the  stock,  he  will 
be  estopped  from  making  any  claim  against  an  innocent  pur- 
chaser dealing  on  the  faith  of  such  apparent  ownership  or  right 
of  disposal."  ^  But  in  such  case  the  pledgor  is  not  without 
remedy;  if  the  pledgee  has  disposed  of  the  stock,  the  pledgor 
may  bring  an  action  against  him  for  conversion,  and  recover 
its  value.  If  the  stock  is  still  in  the  hands  of  the  pledgee, 
or  if  it  has  been  transferred  to  a  third  person  having  notice  of 
the  equities  of  the  pledgor;  that  is  to  say,  one  who  has  notice 
of  the  fact  that  the  stock  is  held  as  a  pledge,  and  was  not  in- 
tended to  be  transferred  by  a  sale  to  the  pledgee ;  the  pledgor 
in  such  case  could  sustain  a  bill  in  equit}^  against  the  pledgee 
and  such  third  persons  so  holding  the  stock  with  notice,  and 
the  court  of  equity  would  declare  that  the  stock  was  held  as  a 
pledge  and  not  by  reason  of  actual  transfer.  The  maxim  in 
equity  would  apply,  "Equity  regards  substance  rather  than 
form;"  and  although  the  transfer  upon  its  face  might  be  abso- 
lute, or  even  have  gone  so  far  as  to  have  been  transferred  to 
the  pledgee  upon  the  books  of  the  company,  still  the  court  of 
equit}''  would  declare  that  such  transfer  was  but  a  pledge,  and, 
if  new  certificates  of  stock  had  been  issued,  would  decree  their 
cancellation,  and  that  certificates  upon  the  redeeming  of  the 
pledge  be  issued  to  the  pledgor. 

In  the  case  of  Brich  v.  Brich^  Field,  J.,  in  the  opinion  of 
the  court,  said:  "In  the  late  case  of  Peugh  v.  Davis  (96  U.  S. 

1  Walker  v.  Detroit  Transit  Ry.  Co.,  regard  as  tlie  weaker  party,  against 
47  Mich.  338.  See  authorities  cited  being  wronged  or  oppressed  by  cred- 
by  the  court  at  page  347;  also  brief  itors,  vvhom  they  regard  as  the 
of  counsel.  stronger    party.     Their    method    of 

2  98  U.  S.  514:  Hughs  v.  Edwards,  interference  has  been  by  preventing 
9  Wheat.   489;  Russell  v.  Southern,  the  creditor  from   maintaining  his 

12  How.    139;    Pierce   v.    Robinson,  title  according  to  the  legal  effect  of 

13  Cal.  116.  In  the  case  of  Newton  his  conveyance  whenever  it  was  in- 
V.  Fay,  10  Allen,  505,  the  court  en-  equitable  for  him  to  do  so.  There- 
ters  into  a  full  discussion  of  this  ques-  fore,  it  was  held  in  Howard  v.  Har- 
tion.  Chapman,  J.,  in  rendering  the  ris,  1  Vern.  190,  that  if  a  mortgage 
opinion,  saj's:  "The  policy  of  courts  is  made  by  its  terms  irredeemable, 
of  equity  has  been  from  the  earliest  or  tlie  redemption  is  restricted,  such 
time  to  protect  debtors,  whom  they  restrictions     are    disregarded.      In 

211 


259 


PLEDGE    OK    PAWN. 


[PAET    II. 


386)  we  stated  the  doctrine  of  equity  on  this  subject.  Where 
an  instrument  was  in  the  form  of  a  conveyance,  but  was  in  fact 
intended  as  a  security,  and  though  the  instrument  there  was  a 
deed  of  real  property,  the  principle  applies  when  the  instru- 


Spiirgeon  v.  Colliei',  1  Eden,  55, 
the  same  doctrine  was  held,  and 
Lord  Northington  said  that  a  man 
will  not  be  suffered  in  conscience  to 
fetter  himself  with  a  limitation  or 
restriction  of  his  time  of  redemp- 
tion. In  Vernon  v.  Bethell,  2  Eden, 
110,  parol  evidence  was  admitted 
to  prove  tliat  an  absolute  convey- 
ance of  an  equity  of  redemption  of 
real  estate  was  made  as  security  for 
a  loan  and  for  no  other  consider- 
ation, and  the  vendor  was  permitted 
to  redeem.  The  court  said  that  neces- 
sitous men  are  not,  truly  speaking, 
free  men,  but  to  answer  a  present 
exigency  will  submit  to  any  terms 
that  the  crafty  may  impose  upon 
them.  When  such  parol  evidence 
has  been  admitted,  it  has  not  been 
regarded  as  inconsistent  with  the 
statute  of  frauds.  In  Walker  v. 
Walker,  2  Atk.  98,  Lord  Hardwicke 
said  it  had  nothing  to  do  with  the 
statute  of  frauds.  In  Kunkle  v. 
Wolfersberger,  6  Watts,  126,  Gibson, 
C.  J.,  said  the  proof  raises  an  equity 
consistent  with  the  writing.  It 
seems  to  be  regarded  as  an  inquiry 
into  the  consideration  of  the  sale, 
for  the  purpose  of  doing  equity  be- 
tween the  parties.  The  rule  on  this 
subject  and  the  reason  of  it  are  fully 
and  clearly  stated  by  Mr.  Justice 
Curtis  in  Russell  v.  Southard,  12 
How.  139.  He  says:  'To  insist  on 
what  was  really  a  mortgage  as  a 
sale  is  in  equity  a  fraud  which  can- 
not be  successfully  practiced  under 
the  shelter  of  any  written  papers, 
however  precise  and  complete  they 
may  appear  to  be.'  He  cites  several 
English  as  well  as  American  authori- 
ties to  sustain  this  position.  In  the 
prior  case  of  Morris  v.  Nixon,  1  How. 

212 


126,  the  same  doctrine  had  been  be- 
fore held,  and  in  Babcock  v.  Wyman, 
2  Curtis.  C.  C.  3S6;  s.  C,  19  How.  289. 
it  was  re-affirmed.  The  case  of  Ru.s- 
sell  V.  Southard  came  up  from  Ken- 
tucky, and  Mr.  Justice  Curtis  says: 
'It  is  suggested  that  a  different  rule 
is  held  by  the  highest  court  in  Ken- 
tucky. If  it  were,  with  great  respect 
for  that  learned  court,  this  court 
would  not  feel  bound  thereby.  This 
being  a  suit  in  equity,  and  oral  evi- 
dence being  admitted  or  rejected 
not  by  the  mere  force  of  any  state 
statute,  but  upon  the  principles  of 
general  equity  jurisprudence,  this 
court  must  be  governed  by  its  own 
views  of  those  principles.'  But  he 
cites  the  case  of  Edrington  v.  Har- 
per, 3  J.  J.  Marsh.  355,  where  it  was 
Jield  tliat  the  fact  that  the  real  trans- 
action between  the  parties  was  a 
borrowing  and  lending  will,  when- 
ever or  however  it  may  appear,  show 
that  a  deed  absolute  upon  its  face 
was  intended  as  a  security  for 
money,  and  whenever  it  can  be  as- 
certained to  be  a  security  for  money, 
it  is  only  a  mortgage.  Mr.  Justice 
Story  had  held  the  same  doctrine  at 
a  still  earlier  period.  He  held  that 
parol  evidence  was  admissible  to 
show  that  an  absolute  deed  was  in- 
tended as  a  security  for  money,  and 
that  such  a  deed  should  be  treated 
as  a.  mortgage,  whether  the  defeas- 
ance was  omitted  by  fraud,  mistake 
or  accident,  or  by  design,  upon  mut- 
ual confidence  between  the  parties; 
for  he  says  the  violation  of  such  an 
agreement  would  be  a  fraud  of  the 
most  flagrant  kind,  originating  in  an 
open  breach  of  trust,  against  con- 
science and  justice.  Taylor  v.  Lu- 
ther, 2  Sumner,  228;  Jenk'ns  v.  El- 


CH.  Ill,]  NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE. 


[§  252. 


ment  purports  to  transfer  personal  property.  A  court  of 
equity,  we  there  said,  looks  beyond  the  terms  of  the  instrument 
to  the  real  transaction,  and  when  that  is  shown  to  be  one  of 
security  and  not  of  sale  it  will  give  effect  to  the  actual  C9n- 


dridge,  3  Story,  293.  The  same  rule 
has  long  been  held  in  New  York 
and  on  the  same  ground.  Strong  v. 
Stewart,  4  Johns.  Ch.  167,  was  de- 
cided by  Chancellor  Kent  on  the 
strength  of  several  English  authori- 
ties cited  by  him.  See  also  Slee  v. 
Manhattan  Co.,  1  Paige,  48;  Van 
Buren  v.  Olmstead,  5  Paige,  9.  In 
the  latter  case  the  rule  is  said  to  be 
well  settled.  After  considerable  dis- 
cussion it  was  settled  that  the  rulo 
was  limited  to  cases  in  equity,  and 
did  not  prevail  in  courts  of  law. 
Webb  V.  Rice,  1  Hill,  606;  Hodges  v. 
Tennessee  Ins.  Co.,  4  Selden,  416. 
But  by  the  code  parol  evidence  is 
made  admissible  both  at  law  and  in 
equity  to  show  that  an  assignment, 
though  absolute  in  its  terms,  was  a 
security  for  a  loan  or  an  indemnity 
against  a  liability,  and  is  therefore  a 
mortgage.  Despard  v.  Walbridge, 
15  N.  Y.  374.  In  Wright  v.  Bates,  13 
Vt.  341,  the  court  say:  'It  is  well 
settled  law  in  this  state  that  a  court 
of  chancery  will  treat  an  absolute 
deed  of  real  estate,  given  to  secure, 
the  payment  of  a  debt,  as  a  mort- 
gage, as  between  the  immediate  par- 
ties, especially  if  the  grantor  con- 
tinues to  remain  in  possession, 
though  the  defeasance  rests  wholly 
in  parol.'  But  where  the  possession 
has  followed  the  deed  through  several 
grantees,  such  evidence  is  held  in- 
admissible. Conner  v.  Chase,  15  Vt. 
764.  And  in  this  last  case  Williams. 
C.  J.,  argues  against  the  rule  itself. 
In  a  note  to  2  Cruise  Dig.  (Greenl, 
ed.),  tit.  XV,  ch.  1,  sec.  20.  it  is  said 
that  'in  Maine  and  Massachusetts 
the  statutes  recognize  only  two 
modes  of  creating  a  mortgage  to 
which  tliS  chancery  jurisdiction  of 

21 


the  courts  extends,  namely,  by  pro- 
viso inserted  in  the  deed,  and  by  a 
separate  deed  of  defeasance.  All 
equitable  mortgages  created  by  con- 
tract of  the  parties  seem,  therefore,  to 
be  excluded.  Relief,  if  any,  in  other 
cases  must  be  referred  to  the  head 
of  fraud,  trust,  or  accident  and 
mistake.'  Since  the  publication  of 
that  work  relief  has  been  afforded 
under  this  head  in  a  case  where  an 
absolute  deed  was  alleged  to  have 
been  intended  as  a  security  for  a 
debt,  and  where  the  answer  and 
proof  showed  the  intention.  Howe 
V.  Russell,  36  Me.  115.  No  case  has 
arisen  in  this  commonwealth  where 
this  court  could  consider  whether  it 
would  adopt  the  rule  of  equity  ad- 
mitting parol  evidence  to  prove  that 
an  absolute  deed  was  given  as  secu- 
rity for  a  loan  or  for  indemnity.  For 
though  the  court  has  had  jurisdic- 
tion of  trusts  for  many  years,  yet 
the  jurisdiction  has  been  strictly 
construed,  and  has  been  held  not  to 
extend  to  trusts  created  by  convert- 
ing a  fraud  into  h,  trust.  Mitchell  v. 
Green,  10  Met.  101.  As  a  mortgage 
is  not  strictly  a  trust,  but  the  ele- 
ment of  fraud  is  held  to  enter  into 
the  attempt  to  convert  it  into  an 
absolute  sale,  the  court  could  not, 
prior  to  1855,  have  entertained  juris- 
.  diction  of  such  a  case.  The  i^resent 
case  does  not  require  us  to  decide 
whether  the  rule  ought  to  be  adopted 
here  in  application  to  a  mortgage  of 
real  estate.  But  in  respect  to  the 
transfer  of  stocks,  which  requires 
but  little  formality  between  the  par- 
ties, and  is  often  made  in  the  hurry 
of  business,  as  a  bill  of  parcels  is 
made,  and  as  to  which  a  trust  may 
be  created  and  proved  by  parol,  and 
3 


§  253.]  PLEDGE    OK   PAWN.  [^ART    II. 

tract  of  the  parties.  As  the  equity  upon  which  the  court  acts 
in  such  cases  arises  from  the  real  character  of  the  transaction, 
any  evidence,  written  or  oral,  tending  to  show  this  is  admissi- 
ble. The  rule  which  excludes  parol  testimony  to  contradict 
or  vary  a  written  instrument  has  reference  to  the  language 
used  by  the  parties.  That  cannot  be  qualified  or  varied  from 
its  natural  import;  it  must  speak  for  itself.  The  rule  does  not 
forbid  an  inquiry  into  the  object  of  the  parties  in  executing 
and  receiving  the  instrument.  Thus,  it  may  be  shown  that  a 
deed  was  made  to  defraud  creditors,  or  to  give  a  preference,  or 
to  secure  a  loan,  or  for  any  other  object  not  apparent  on  its 
face.  The  object  of  parties  in  such  cases  will  be  considered  by 
a  court  of  equity;  it  constitutes  a  ground  for  the  exercise  of 
its  jurisdiction,  which  will  always  be  asserted  to  prevent  fraud 
or  oppression  and  to  promote  justice."  But  in  such  case  it  is 
is  only  the  honajide  purchaser  that  can  take  a  valid  title  of  the 
stock  from  the  pledgee.  A  purchaser  who  has  no  knowledge 
of  the  real  facts  as  to  the  pledgee's  holding  the  stock,  and  where 
there  is  nothing  upon  the  face  of  the  certificates  which  would 
put  a  reasonably  prudent  man  upon  inquiry;  as,  for  example, 
if  upon  its  face  the  certificates  of  stock  were  charged  with  a 
trust;  or  if  there  was  acknowledged  upon  the  part  of  the  per- 
son taking  such  stock  from  the  pledgee  that  the  stock  was 
charged  with  the  trust,  or  if  upon  the  face  of  the  stock  it  ap- 
peared that  the  stock  was  fictitious,  the  purchaser  could  not 
claim  to  be  a  honajide  holder. 

Bills  of  Lading. 

§  253.  Bills  of  lading:  sul)jects  of  pledge. —  A  bill  of  lading 
is  defined  to  be  a  written  acknowledgment  signed  by  the  com- 
mon carrier  that  he  has  received  the  goods  therein  described 
from  the  shipper  to  be  transported  on  the  terms  therein  ex- 
pressed to  the  described  place  of  destination,  and  there  to  be 
delivered  to  the  consignee  or  parties  therein  designated.     By 

which  is  to  be  regarded  as  a  pledge  admitting  oral  proof  as  to  the  con- 
rather  than  a  mortgage,  when  used  sideration  and  purpose  of  the  trans- 
as  a  collateral  security,  we  think  the  fer,  and  tiiat,  upon  the  discharge  of 
principle  of  equity  jurisdiction  so  the  debt  or  duty  secured  by  it.  tlie 
fully  established  elsewhere  in  re-  pledgor  should  be  permitted  to  re- 
gard to  instruments  much  more  for-  deem." 
mally  executed  ought  to  be  adopted, 

514 


cir.  in.]  NON-NEGOTIABLE  AND  quasi-np:gotiable,  [§  253. 

it  the  common  carrier  contracts  to  carry  and  deliver  goods  to 
the  consignee,  or  to  the  order  of  the  shipper.  It  will  be  borne 
in  mind  that  the  propert}^  described  in  the  bill  of  lading  is  in 
the  possession  of  the  common  carrier  for  the  purpose  only  of 
delivery  to  the  consignee.  It  has  been  said  that  a  bill  of  lad- 
ing is  a  symbol  of  property,  and  when  properly  indorsed  oper- 
ates as  a  delivery  of  the  property  itself,  investing  the  indorsee 
with  a  constructive  custody  which  serv^es  all  the  purposes  of 
an  actual  possession,  and  so  continues  until  there  is  a  valid  and 
complete  delivery  under  and  in  presence  of  the  bill  of  lading 
to  the  person  entitled  to  receive  the  property.^  It  may  there- 
fore be  said  that  a  bill  of  lading  is  in  the  nature  of  a  quasi- 
negotiable  instrument,  and  that  long-continued  custom  and 
the  usages  of  trade  have  given  to  it  distinctive  characteristics, 
among  which  are,  that  a  transfer  of  the  property  may  be  ef- 
fected by  an  indorsement  of  the  bill  by  the  consignee  to  whom- 
soever he  desires  to  deliver  the  property,  and  that  the  same 
rules  would  apply  to  a  bill  of  lading  as  those  which  have  been 
already  discussed  with  reference  to  negotiable  instruments. 
We  have  here  to  consider  onl}-  whether  a  bill  of  lading  is  the 
subject  of  a  pledge,  and  to  what  extent  its  indorsement  and 
delivery  for  that  purpose  is  necessary  to  create  a  pledge  to  se- 
cure the  discharge  of  some  obligation  or  the  payment  of  a 
debt.  If  indorsement  and  delivery  of  the  bill  of  lading  is  suffi- 
cient to  transfer  the  possession  and  title  of  the  property,  it  is 
certainly  sufficient  to  transfer  to  the  pledgee  a  possession  to  be 
held  in  pledge  for  the  performance  of  an  obligation  or  the  pay- 
ment of  a  debt. 

In  Pollard  v.  Vinton,^  Miller,  J.,  in  delivering  the  opinion  of 
the  court  took  occasion  to  speak  of  the  character  and  effect  of 
a  bill  of  lading,  and  used  this  language:  "  A  bill  of  lading  is  an 
instrument  well  known  in  commercial  transactions,  and  its 
character  and  effect  have  been  defined  by  judicial  decisions. 
In  the  hands  of  the  holder  it  is  evidence  of  ownership,  special 
or  general,  of  the  property  mentioned  in  it,  and  of  the  right  to 
receive  said  property  at  the  place  of  delivery.  Notwithstand- 
ing it  is  designed  to  pass  from  hand  to  hand  with  or  without 

1  Hieskell  v.  Fanners'  Bank.  89  Pa.        ^  10.j  U.  S.  7. 
St.  lo5;  Dows  V.  National  Exchange 
Bank,  91  U.  S.  618,  629. 

215 


§  254.]  PLEDGE    OE    PAWX.  [PAET    II. 

indorsement,  and  it  is  efficacious  for  its  ordinary  purposes  in 
the  hands  of  the  liolder,  it  is  not  a  negotiable  instrument  or 
obligation  in  the  sense  that  a  bill  of  exchange  or  a  promissory 
note  is.  Its  transfer  does  not  preclude,  as  in  those  cases,  all  in- 
quiry into  the  transaction  ia  which  it  originated  because  it  has 
come  into  the  hands  of  persons  who  have  innocently  paid  value 
for  it;  the  doctrine  of  lonajide  purchasers  only  applies  to  it  in 
a  limited  sense.  It  is  an  instrument  of  a  twofold  character;  it 
is  at  once  a  receipt  and  a  contract.  In  the  former  character  it 
is  an  acknowledgment  of  the  receipt  of  property  on  board  his 
vessel  by  the  owner  of  the  vessel.  In  the  latter  it  is  a  contract 
to  carry  safely  and  deliver.  The  receipt  of  the  goods  lies  at 
the  foundation  of  the  contract  to  carry  and  deliver." 

§  254.  Delivery  by  the  pledgor. —  It  follows  from  what  has 
been  said  that  the  pledgor,  to  create  a  pledge  of  the  bill  of 
lading,  or  the  property  which  it  represents,  must  deliver  the 
bill  with  such  transfer  or  assignment  of  the  same  as  will  be 
necessary  to  give  to  the  pledgee  possession  and  control  of  the 
property  represented  by  the  bill  of  lading.  Whatever  is  neces- 
sary to  be  done  in  order  to  bring  this  about  must  be  done 
in  order  to  create  the  pledge.  B}'  usage  and  custom  it  has 
come  to  be  recognized  as  legal,  that  a  bill  of  lading  may  be 
transferred  by  indorsement  in  blank  by  the  owner,  and  deliver- 
ing the  same  to  the  transferee,  if  it  be  the  intention  of  the  par- 
ties by  such  delivery  to  make  the  transfer.  Hence  it  may  be 
said  that  the  owner  of  the  property,  or  the  consignee  of  the 
property,  if  it  is  consigned  to  another  person  than  the  owner, 
may  pledge  the  property  by  indorsing  the  bill  of  lading  in 
blank  and  delivering  it  to  the  pledgee  with  the  intention  of 
creating  the  pledge.  And  so  it  has  been  held  that  a  pledge  of 
the  bill  of  lading,  drawn  to  the  order  of  the  pledgor,  may  be 
created  by  mere  delivery  to  the  pledgee. 

In  First  Nat.  Banh  v.  Dearhorn^  it  was  held:  "The  deliv- 
ery by  an  owner  of  goods  of  a  common  carrier's  receipt  for 

1 115  Mass.  219.    The  following  au-  veyance,  and    contained  tlie  words 

thorities  are   cited  in  tlie   opinion:  "this  receipt  is  not  transferable,"' it 

Tuxvvorth  V.  Moore,  9  Pick.  34:7:  Fet-  was  held  tliat  the  transfer  by  deliv- 

typlace  v.  Dutch.  V6  Pick.  388;  Wliip-  eiy  vested  a  special  property  in  the 

pie  V.  Thayer,  16  Pick.  2.'5;  National  transferee.     Peters   v.  Elliott,  78  111. 

Bank     v.    Crocker,    111    Mass.    163.  321;  Tiedeman  v.  Knox,  53  Md.  612. 

Where  the  bill  designated  no  con-  In  the  latter  case  it  was  held  that 

216 


CF.  III.]  NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE.  [§  255. 

them,  not  negotiable  in  its  nature,  as  security  for  an  advance 
of  money,  with  the  intent  to  transfer  the  property  in  the 
goods,  is  a  symbolical  delivery  of  them,  and  vests  in  the  per- 
son making  the  advance  a  special  property  in  the  goods  suffi- 
cient to  maintain  replevin  against  an  officer  who  afterwards 
attaches  them  upon  a  writ  against  the  general  owner."  It  has 
also  been  held  "  that  a  bill  of  lading  stands  in  place  of  the 
property''  covered  by  it.  It  represents  the  property.  When 
the  right  of  possession  is  changed  by  a  sale  or  pledge  of  the 
property  itself,  the  transfer  of  the  bill  of  lading  operates  as  a 
change  of  possession  of  the  property,  the  carrier  in  the  mean- 
time being  the  custodian  for  the  real  owner  or  party  in  inter- 
est. While  the  bill  of  lading  is  not  a  negotiable  instrument 
in  the  sense  in  which  a  bill  of  exchange  or  promissory  note  is 
negotiable,  yet,  as  the  representative  of  a  valuable  commodity, 
it  is  assignable  to  the  party  entitled  to  control  the  possession 
of  that  commodity  to  the  same  extent  and  for  the  same  pur- 
poses as  the  property  itself  would  be,  if  corporeal,  personalty. 
Inasmuch,  therefore,  as  these  instruments  are  capable  of  per- 
forming very  important  functions  in  commercial  transactions, 
innocent  holders  thereof  for  value  ought  to  receive  the  same 
protection  as  if  they  held  possession  of  the  property  itself." 

§  255.  Mere  delivery  of  the  bill  sufficient. —  A  mere  in- 
dorsement of  the  bill  of  lading  without  delivery  would  not 
transfer  the  property.^  Delivery  seems  to  be  an  absolute  requi- 
site to  the  creation  of  a  pledge  of  the  property.  The  impor- 
tant essential  in  this  class  of  cases  is  that  there  be  evidence 
of  intention  upon  the  part  of  the  pledgor,  or  in  case  of  a  bill 
of  lading  on  the  part  of  the  owner  or  consignee,  to  deliver  the 
property  represented  in  the  bill  of  lading;  that  intention  is 
evidenced  by  the  delivery  of  the  bill  for  the  purpose  of  creat- 
ing the  pledge  or  delivering  the  property;  and  it  is  held  that  a 
mere  delivery  of  the  bill  of  lading,  with  intention  by  it  to  de- 
liver the  property,  or  to  create  a  pledge,  is  sufficient,  and  that 
a  written  indorsement  is  not  absolutely  necessary.'^     In  this 

"wliere  one  paid  a  draft,  receiving  ment  of  a  bill  of  lading  without  a 
the  bill  as  secnritj^  the  title  to  the  delivery  of  it  does  not  transfer  the 
goods  became  vested  in  him."  property  in  the  goods."    Lickbarrow 

1  In  Buffington  v.  Cm'tis,  15  Mass.     v.  Mason,  3  T.  R.  6:J. 
528,  it  was  held:  "The  mere  indorse-        -Mich.   Cent.   R.   Co.  v.  Philips,  GO 

217 


§  255.]  PLEDGE    OR    PAWN.  [PAET    II. 

case  the  court  say:  "In  legal  effect  and  for  the  purpose  of 
explaining  what  is  to  be  clone  with  the  merchandise,  there  can 
be  no  substantial  difference  between  a  bill  of  lading  and  a  car- 
rier's receipt.  We  have  in  this  case  an  intent  of  the  general 
owners  of  the  flour  to  make  use  of  it  as  a  security  for  an  ad- 
vance of  money  from  the  plaintiff;  a  delivery  of  the  bill  of 
lading  in  pursuance  of  that  intent,  and  a  valuable  and  executed 
consideration  in  the  discounting  of  the  draft.  The  fact  that 
the  goods  were  in  the  custody  of  the  defendant  would  not  pre- 
vent this  arrangement  from  having  the  effect  to  transfer  the 
title  of  consignors  to  plaintiffs.  "Whether  it  should  be  regarded 
as  a  sale,  a  pledge,  or  a  mortgage,  there  was  a  sufficient  deliv- 
ery to  give  to  the  plaintiffs  a  special  property  which  they  could 
enforce  by  suit  against  any  wrong-doer." 

In  Merchants''  Bank  v.  JV.  &  R.  R.  T.  Co.  (cited  in  the  note), 
the  court  say:  "  The  rule  is  well  settled  that  property  or  goods 
shipped  by  a  bill  of  lading  drawn  to  order  may  be  transferred 
by  delivery  to  a  third  person  without  any  indorsement.  Bills 
of  lading  are  choses  in  action,  and  no  rule  is  better  established 
than  that  instruments  of  this  character  may  be  transferred  for 
a  valuable  consideration  by  delivery  only."  But  it  has  been 
held,  where  the  bill  of  lading  makes  the  goods  deliverable  to 

111.  190;  Western  Ry.  Co.  v.  Wagner,  what  such  interest  is.     The  fact  that 

65    111.  197;  Allen    v.   Williams,    12  the  state  statute   provides   for  the 

Pick.  297:  Green  Bay  First  Nat.  Bank  transfer    of   bills    of   lading   by   in- 

V.  Dearborn,  115  Mass.  219;  Jeflferson-  dorsement    does    not    restrict    that 

ville   R.    Co.    V.    Irvin,   46   Ind.  180;  transfer  to  such  method.     Where  a 

Becker  v.  Hallgarten,  86  N.  Y.  167,  contract  for  sale  of  goods  shows  that 

175;  Rochester  v.  Jones,  4  N.  Y.  497,  they  were  to  be  delivered  at  the  ter- 

55  Am.  Dec.  — ;  Merchants'  Bank  v.  mination  of  a  carrier's  lien,  their  de- 

N.  R.  R.  T.  Co..  69  N.  Y.  376,  379-99;  livery  by  the  seller  to  the  carrier. 

City  Bank  v.  Railroad  Co.,  44  N.  Y.  though  consigned  to  the  buyer,  will 

136;    Holmes   v.   German    Security  not  pass  the  title,  and  a  transfer  of 

Bank,    87    Pa.   St.   525;    Holmes  v.  the  bill  of  lading  by  the  seller  will 

Bailey,  92  Pa.  St.  57;  Richardson  v.  vest  the  tx'ansferee  with  the  right  of 

Nathan,  167   Pa.  St.  513;  Schraff  v.  possession  of  the  goods.     But  where 

Meyer,  133   Mo.   428,   42   Cent.   Law  delivery  to  the  carrier  operates  under 

Jour.   367.     In  the   latter  case  the  the  contract  of  sale  to  pass  title  to 

court  held:  "The  transfer  of  a  bill  the  buyer,  the  retention  and  transfer 

of   lading   by   delivery  without   in-  of  the  bill  of  lading  by  the  seller  will 

dorsement    carries   with   it  all   the  carry  no  right  in  the  goods,  though 

rights    of    the    transferrer    in     the  by  statute  tlie  carrier  is  forbidden  to 

goods  represented  by  it,  and  extriii-  deliver  the  goods  without  the  presen- 

sic  evidence  is  admissible   to  show  tation  of  the  bill  of  lading. 

218 


en.  III.]  NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE.  [§  256. 

the  person  named  as  consignee,  and  there  are  no  words  of  ne- 
gotiability, then  in  such  a  case  the  mere  delivery  of  the  instru- 
ment, when  it  is  intended  to  have  the  effect  to  transfer  the 
title  to  the  goods  described  in  it,  will  be  sufficient  to  transfer 
the  title.  And  where  the  bill  of  lading  is  drawn  to  order,  this 
will  not  prevent  a  transfer  of  the  property  to  a  third  person 
by  a  mere  delivery  of  the  bill.^ 

In  Emery  Sons  v.  Irwin  Nat.  Banh^  the  court  say:  "By  the 
rules  of  commercial  law,  bills  of  lading  are  regarded  as  sam- 
ples of  the  property  therein  described,  and  delivery  of  such 
bill  by  one  having  an  interest  in,  or  a  right  to  control,  the 
property,  is  equivalent  to  a  delivery  of  the  property  itself.  The 
consignor  who  has  reserved  the  jus  disj^onendi  may  effectu- 
ate a  sale  or  pledge  of  the  property  consigned  by  delivery 
of  the  bill  of  sale  to  the  purchaser  or  pledgee,  as  completely 
as  if  the  property  were  in  fact  delivered.  If  such  transfer  of 
the  bill  of  lading  be  made  after  the  property  has  passed  into 
the  actual  possession  of  the  consignee,  the  transferee  of  the  bill 
takes  it  subject  to  any  right  or  lien  which  the  consignee  may 
have  acquired  by  reason  of  his  possession.  But  if  the  bill  of 
lading  be  transferred  by  way  of  sale  or  pledge  to  a  third  per- 
son before  the  property  comes  into  the  possession  of  the  con- 
signee, the  consignee  takes  the  property  subject  to  any  right 
which  the  transferee  of  the  bill  may  have  acquired  by  the  sym- 
bolical delivery  of  the  property  to  hira." 

§  256.  Bill  of  lading  to  consignee  with  draft  attached. —  It 
is  a  customary  course  of  business  for  the  shipper  and  owner  of  the 
property  to  consign  the  property  shipped  to  some  person  upon 
payment  of  draft  attached,  intending  thereby  to  consign  the 
property  to  such  person  as  security  for  the  amount  paid  upon 
the  draft,  or  to  transfer  to  him  the  title  of  the  property.  Now, 
if  in  such  case  the  consignee  accepted  and  paid  the  draft  accom- 

1  City  Bank  V.  R.  W.  &  O.  R.  Co.,  The  delivery  of  the  bill  of  lading  with 

44  N.  Y.  136.    The  court  held  that  intent  to  pass  title  has  that  effect, 

■•  delivery  of  a  bill  of  lading  within-  although  it  be  not  payable  to  'as- 

tent  to  pass  the  title  has  that  effect,  signs,'  or,  if  so  payable,  it  be  not  in- 

although  the  bill  is  drawn  to  order  dorsed."      Par.    Mer.     Law,    346;     2 

and  is  not  indorsed."  The  court  say:  Kent's  Com.  207. 
"I  suppose,  however,  that  the  title        2  25  Ohio  St.  360.    A  full  discussion 

to  the  wheat  passed  to  the  plaintiff  may  be  found  in  Neill  &  EUingham 

by  the  delivery  of  the  bill  of  lading,  v.  Produce  Co.,  41  W.  Va,  37. 

219 


§  257.]  PLEDGE    OR    PAWN.  [PART    II. 

panying  the  bill  of  lading,  the  title  of  the  property  would  be 
vested  in  him  to  the  extent  of  the  intention  of  the  parties,  and 
the  consignor  could  not  defeat  his  interest  in  the  property  by 
assignment  to  a  third  person;  but  if  the  consignee  refuse  to 
accept  the  draft,  then  in  such  case  the  consignor  might  confer 
the  title  to  the  property  upon  some  other  person,  or  might 
pledge  the  same  as  security.^ 

§  257.  A  bill  of  lading,  how  far  negotiable. — As  we  have 
seen,  a  bill  of  lading  is  a  contract,  among  other  things,  whereby 
the  carrier  engages  to  deliver  the  goods  to  the  consignee  men 
tioned  in  the  bill.  As  has  been  said,  bills  of  lading  are  re- 
garded as  so  much  cotton,  grain,  iron  or  other  articles  of 
merchandise  described  in  them.  The  merchandise  is  very  often 
sold  or  pledged  by  the  transfer  of  the  bills  which  cover  it. 
But  they  are  not  negotiable  to  the  extent  that  bills  of  exchange 
and  promissory  notes  are  negotiable;  they  are,  in  other  words, 
very  different  from  bills  of  exchange  and  promissory  notes,  an- 
swering a  different  purpose  and  performing  different  functions. 
And  it  has  been  held  that  even  the  statute  of  a  state  which 
undertakes  to  make  them  negotiable  by  indorsement  and  de- 
livery, or  negotiable  in  the  same  manner  as  bills  of  exchange 
and  promissory  notes  are  negotiable,  thus  undertaking  to 
change  totally  their  charr.cter  and  put  them  in  all  respects 
upon  the  same  footing  as  negotiable  bills  and  notes,  would  not 
be  sufficient  to  make  them  negotiable  in  the  sense  that  com- 
mercial paper  is  negotiable  by  the  law  merchant.  This  ques- 
tion was  before  the  supreme  court  of  the  United  States  in  Shaio 
V.  Railroad  Co?  Strong,  J.,  delivering  the  opinion,  said :  "  It  can- 

^In  Marine  Bank  v.  Wright,  48  the  title  continues  unimpaired,  and 
N.  Y.  1,  it  was  held:  "  Where  the  con-  upon  the  receipt  by  the  consignee  of 
signer  of  property,  upon  its  shipment  the  property  and  its  conversion,  he 
and  before  delivery,  draws  a  bill  of  is  liable  to  the  bank  for  the  money 
exchange  upon  the  consignee  and  advanced  upon  it."  Michigan  Cent, 
procures  the  same  to  be  discounted  Ry.  Co.  v.  Phillips,  60111.  190;  Illinois 
at  a.bank  upon  the  security  of  a  bill  Cent.  Ry.  Co.  v.  Southern  Bank,  etc., 
of  lading  which  is  transferred  and  41  111.  App.  287;  Chicago  Fifth  Nat. 
delivered  with  it,  the  bank  acquires  Bank  v.  Bayley,  lloMass.  228;  Hatha- 
title  to  the  property  described  in  the  way  v.  Haynes,  124  Mass.  311;  Corn- 
bill  of  lading,  conditional  upon  the  mercial  Bank  v.  Pfeiflfer,  108  N.  Y. 
acceptance  of  the  draft;  upon  such  242;  Peters  v.  Elliott,  78  IlL  321. 
acceptance  the  title  passes  to  the  2  loi  U.  S.  557,  565. 
acceptor;  but  upon  refusal  to  accept, 

220 


CH.  III.]        NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE.       [§§  25S,  259. 

not  be,  therefore,  that  the  statute  which  makes  them  negotiable 
by  indorsement  and  delivery,  or  negotiable  in  the  same  man- 
ner as  bills  of  exchange  and  promissory  notes  are  negotiable, 
intended  to  change  totally  their  character  or  put  them  in  all 
respects  on  the  same  footing  of  instruments  which  are  the  repre- 
sentatives of  money,  and  charge  the  negotiation  of  them  with 
all  the  consequences  which  usually  attend  or  follow  the  nego- 
tiation of  bills  and  notes.  Some  of  these  consequences  would 
be  very  strong,  if  not  impossible;  such  as  the  liability  of  in- 
dorsers,  the  duty  of  demand  ad  diem,  notice  of  non-delivery  by 
the  carrier,  etc.,  or  the  loss  of  the  owner's  property  by  the 
fraudulent  assignment  of  a  thief.  If  these  were  intended,  surely 
the  statute  would  have  said  something  more  than  merely  make 
them  negotiable  by  indorsement.  No  statute  is  to  be  construed 
as  altering  the  common  law  further  than  its  words  import.  It 
is  not  to  be  construed  as  making  any  innovation  upon  the  com- 
mon law  which  it  does  not  fairly  express."  Very  many  of  the 
states  have  undertaken  by  statute  to  introduce  important 
changes  of  the  common-law  doctrine  upon  this  subject. 

§  258.  Who  are  bona  fide  holders  of  bill  of  lading. —  It  is 
a  universal  rule,  that  one  to  be  a  hona  fide  holder  must  have 
paid  value.  So  it  may  be  said  first  of  all,  that  a  honafide  holder 
of  the  transferred  bill  of  lading  must  have  paid  value  for  the 
property  thus  transferred.  The  transfer  must  be  in  good  faith 
and  without  fraud  on  the  part  of  or  to  the  knowledge  of  the 
transferee;  and  more  than  that,  it  must  be  without  the  notice 
or  knowledge  of  facts  or  circumstances,  shown  either  upon  the 
face  of  the  bill  or  by  extrinsic  facts,  that  would  lead  a  reason- 
ably cautious  man  to  investigate,  and  if  investigated  would 
lead  to  the  discovery  of  such  fraud  or  defects  as  would  vitiate 
the  transaction.  One  cannot  be  held  to  be  ignorant  of  facts 
which  by  reasonable  prudence  he  should  know. 

§  259."^  Rights  of  bona  fide  holders.— The  bill  of  lading  it- 
self, as  agreed  by  all  authorities,  simply  represents  property, 
and  its  transfer  is  but  a  symbolical  transfer  and  delivery  of 
property.  It  therefore  follows  that  the  transfer  of  the  bill  of 
lading  to  a  hona  fijie  purchaser,  or  pledgee,  is  but  a  transfer 
of  the  property  represented  by  the  bill.  The  transaction  can 
confer  no  greater  right  or  privilege  upon  the  transferee  than 
would    be  conferred    by  dealing  directly  with  the  property 

221 


§  260.]  PLEDGE    OE   PAWN.  [PART    11. 

without  the  use  of  the  sjnnbol  —  the  bill  of  lading.  For,  as  we 
have  seen,  the  bill  of  lading  is  not  a  negotiable  instrument  in 
the  sense  and  to  the  extent  of  promissor}''  notes  and  bills  of 
exchange;  it  does  not  represent  money,  but  simply  represents 
the  specific  property  described  in  it. 

In  Stolleniverxk  v.  Thacher^  it  was  said:  "A  bill  of  lading, 
even  when  in  terms  running  to  order  or  assigns,  is  not  negoti- 
able like  a  bill  of  exchange,  but  a  symbol  or  representative  of 
the  goods  themselves;  and  the  rights  arising  out  of  the  transfer 
of  the  bill  of  lading  correspond  not  to  those  arising  out  of  the 
indorsement  of  a  negotiable  promise  for  the  payment  of  money, 
but  to  those  arising  out  of  a  delivery  of  the  property  itself 
under  similar  circumstances."  The  holder  of  a  bill  of  lading, 
either  as  indorsee,  assignee  or  otherwise,  cannot,  unless  by  stat- 
ute the  negotiability  is  enlarged,  by  transfer  of  the  bill  of  lad- 
ing, even  to  a  Ijonajide  purchaser  or  pledgee  for  value,  confer 
any  greater  right  or  better  title  than  he  himself  has;  and  so 
if  the  transferrer  of  the  bill  has  no  title  he  can  confer  none  upon 
his  transferee.^ 

§  260.  Bona  Me  holder  from  agent  of  owner  or  one  hav- 
ing apparent  title. —  A  'bona  fide  purchaser  or  pledgee  obtain- 
ing his  interest  in  the  property  through  the  purchase  from,  or 
pledge  by  the  agent  of,  one  claiming  to  be  the  owner,  would 
stand  in  no  better  position  than  he  would  if  he  had  purchased 
or  obtained  his  pledge  from  the  owner  himself ;  and  if  it  should 
transpire  that  the  transferrer  was  the  agent  of  the  owner,  and 
had  the  property  only  for  a  specific  purpose  and  Avas  not  a 
general  agent  of  the  owner,  and  the  pledge  or  transfer  was 
not  in  the  execution  and  along  the  line  of  the  ordinary  busi- 
ness of  the  agenc}^  or  the  carrying  out  of  the  specific  purpose, 
then  in  such  case  no  title  or  legal  interest  would  be  conferred 
upon  the  hona  fide  holder;  but  if  the  owner  of  the  property 
had  conferred  upon  the  person  from  whom  the  hona  fide  pur- 

•115  Mass.  224;  Shaw  v.  Railway  Am.  Dec.  350;  Evansville  R.  Co.  v. 

Co.,  101  U.  S.  557;  Dow  v.  Green,  24  Irwin,  84  Ind.   457;    Farmers'  Nat. 

N.  Y.  638.  '  Bank  v.  Logan,  74  N.  Y.  568;  Saltus 

2  Pollard   V.   Vinton,   105  U.   S.   8:  v.  Everett,  20  Wend.  267.  33  Am.  Dec. 
Jasper  Trust  Co.  v.  Kansas  City  R.  541;  Farmers',  etc.  Nat.  Bank  v.  Has- 
Co.,  99  Ala.  416,  42  Am.  St.  Rep.  75;  selton,  78  N.  Y.  104:  Shaw  v.  Rail- 
Haas  V.  Kansas   City  R.  Co..  81  Ga.  way  Co.,  101  U.  S.  557. 
792;  Burton  v.  Curyea,  40  111.  320,  89 

223 


CH.  III.]  NOX-NEGOTIABLE    AND    QUASI-NEGOTIABLE.  [§  2G0. 

chaser  or  pledgee  had  obtained  his  interest  the  apparent  right 
of  property,  as  owner,  or  the  apparent  right  to  dispose  of  the 
property,  then  in  such  case  the  owner  would  be  estopped  from 
claiming  title  as  against  such  hona  fide  purchaser  or  pledgee. 
This  doctrine  rests  upon  the  principle  of  estoppel;  the  owner 
being  estopped  from  asserting  any  title  in  himself  that  would 
be  antagonistic  to  the  title  or  interest  he  has  conferred.  "  A 
hona  fide  holder  can  only  resist  the  claim  of  the  owner  of  the 
property  by  establishing  an  equitable  estoppel  founded  upon 
the  acts  of  the  owner.  It  is  the  application  of  that  rule  by 
which,  as  between  two  persons  equally  innocent,  a  loss  result- 
ing from  the  fraudulent  acts  of  another  shall  rest  upon  him 
by  whose  acts  and  omissions  the  fraud  has  been  made  possible. 
This  rule,  general  in  its  terms,  only  operates  to  protect  those 
who,  in  dealing  with  others,  exercise  ordinary  caution  and  pru- 
dence, and  who  deal  in  the  ordinary  way  and  in  the  usual 
course  of  business,  and  upon  the  ordinary  evidences  of  right 
and  authority  in  those  with  whom  they  deal,  and  as  against 
those  who  have  fraudulently  conferred  upon  others  the  usual 
evidences  or  indicia  of  ownership,  or  an  apparent  authority  to 
deal  with  and  dispose  of  it.  In  such  case,  for  obvious  reasons, 
the  law  raises  an  equitable  estoppel,  and,  as  against  the  real 
owner,  declares  that  the  apparent  title  and  authority  which 
exists  by  his  act  or  admission  shall  quo  ad  persons  acting  and 
parting  with  value  upon  the  faith  of  it,  stand  for  and  be  re- 
garded as  the  real  title  and  authority.  Two  things  must  concur 
to  create  an  estoppel  by  which  an  owner  may  be  deprived  of 
his  property  by  the  act  of  a  third  person,  without  his  assent, 
under  the  rule  now  considered:  (1)  The  owner  must  clothe  the 
person  assuming  to  dispose  of  the  property  with  the  apparent 
title  to  or  authority  to  dispose  of  it;  and  (2)  the  person  alleg- 
ing the  estopel  must  have  acted  and  parted  with  value  upon 
the  faith  of  such  apparent  ownership  or  authority,  so  that  he 
will  be  the  loser  if  the  appearances  to  which  he  trusted  are  not 
real.  In  this  respect  it  does  not  differ  from  other  estoppels 
in  paisy  ^ 

1  Barnard  v.  Campbell,  55  N.  Y.  456.  the  owner  of  goods  sells  the  same  on 
In  the  case  of  Newhall  v.  C.  P.  R.  R.  credit  and  ships  them  on  a  railroad 
Co.,  51  Cal.  345,  it  was  held  that  "if    to  the  vendee  as  consignee  with  bills 

233 


201.] 


PLEDGE    OK    PAWN. 


[part    II. 


Tub  Warehouse  Receipt. 

§  261.  The  warehouse  receipt  as  collateral. —  The  ware- 
house receipt  is  the  evidence  that  certain  property  therein  de- 
scribed is  in  the  care  and  custody  of  the  warehouseman,  held 
subject  to  the  order  of  the  bailor  or  owner,  and  like  the  bill  of 
lading  stands  as  a  symbol  for  the  property  itself.  It  repre- 
sents grain  or  cotton,  or  whatever  property  it  describes,  and 
the  fact  of  its  possession  is  evidence  of  ownership  of  the  prop- 
erty. For,  as  we  have  seen,i  in  due  course  of  business  the 
warehouseman  who  is  the  custodian,  on  receipt  of  the  property 
for  storage,  issues  the  receipt  or  evidence  of  the  possession  of 
the  property  to  the  bailor,  and  by  it  he  says  to  the  world  that 
upon  the  delivery  of  this  receipt  to  him,  and  payment  of 
charges  for  storage,  he  will  deliver  to  the  rightful  owner,  or 
holder  of  the  receipt,  the  property  itself.  Then  we  may  say  of 
this,  as  has  been  said  of  other  such  like  paper,  the  warehouse 
receipt,  while  not  negotiable  to  the  extent  of  standing  for  a 
sum   of  money,  or   in  that  it  ma}^  pass  from  hand  to  hand 


of  lading  in  the  usual  form,  and 
while  tlie  goods  are  in  transit  the 
vendee  becomes  insolvent,  and  the 
vendor  notifies  the  railroad  company 
that  he  stops  the  goods;  and  after 
such  notification  the  vendee  indorses 
the  bill  of  ladmg  in  the  usual  course 
of  business  to  a  third  person,  who  in 
good  faith,  and  without  knowledge 
of  the  insolvency,  or  of  such  notifica- 
tion, advances  money  thereon,  to  be 
repaid  out  of  the  proceeds  of  the 
goods  to  be  sold  by  him  at  auction, 
the  assignee,  on  tender  of  freight 
and  charges,  is  entitled  to  receive 
the  goods  from  the  carrier,  or  against 
the  vendor.  The  court  in  the  opin- 
ion says  that  if  the  bill  of  lading  is 
assigned,  and  the  legal  title  passes 
to  a  bona  fide  purchaser  for  a  valu- 
able consideration  before  the  right 
of  stoppage  is  exercised,  the  lien  of 
the  vendor  ceases  as  against  the  as- 
signee, on  the  well  known  principle 
that  a  secret  trust  will  not  be  en- 


forced as  against  a  bona  fide  holder 
for  value  of  the  legal  title.  In  such 
case,  if  the  equities  of  the  vendor 
and  assignee  be  considered  equal 
(and  this  is  certainly  the  light  most 
favorable  to  the  vendor  in  which  the 
transaction  can  be  regarded),  the  rule 
applies  that  where  the  equities  are 
equal  the  legal  title  will  prevail. 
The  vendor  has  voluntarily  placed  in 
the  hands  of  the  vendee  a  muniment 
of  title,  clothing  him  with  the  appar- 
ent ownership  of  the  goods:  and  a 
person  dealing  with  him  in  the  usual 
course  of  business,  who  takes  an  as- 
signment for  a  valuable  considera- 
tion, without  notice  of  such  circum- 
stances as  render  the  bill  of  lading 
not  fairly  and  honestly  assignable, 
has  a  superior  equity  to  that  of  the 
vendor  asserting  a  recent  lien,  known 
perhaps  only  to  himself  and  the  ven- 
dee." 
1  Ante,  §  179. 


224 


CH.  III.]  NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE.  [§  262. 

as  commercial  paper,  and  subject  to  all  the  rules  and  regula- 
tions imposed  upon  such  like  paper  by  the  law  merchant,  it  is  at 
least  quasi-ne got'mhle,  and  enters  into  large  business  transac- 
tions, because,  by  the  custom  of  trade,  it  stands  for  the  prop- 
erty or  thing  that  is  stored  with  the  warehouseman,  and  will 
be  delivered  upon  the  due  presentation  of  the  receipt.  It  may, 
however,  be  said  that  this  receipt  has  a  property  value  in  it- 
self, not  represented  in  money,  but  by  the  property  or  chattels 
which  are  in  storage.  Therefore  the  warehouse  receipt  may 
be  the  subject  of  a  pledge. 

§  262.  Delivery  of  the  receipt  required  —  Indorsement  iu 
blank. —  To  the  making  of  a  valid  pledge,  delivery  and  ac- 
ceptance are  requisites.  Usually  it  is  duly  assigned  by  the 
bailor  named  in  the  receipt,  to  the  person  who  is  the  pledgee ;. 
but  like  the  bill  of  lading  it  is  not  necessary  that  there  should 
be  an  assignment  of  the  receipt  fully  and  completely  written 
out.  Indorsement  in  blank  with  actual  delivery  is  enough; 
for  the  rightful  holder  may  write  over  the  indorsement  in 
blank  a  full  and  complete  assignment,  and  in  this  way  con- 
vert the  property  which  it  represents  to  his  possession.  Indeed, 
this  is  the  mode  most  usually  adopted  when  it  ia  desired  to 
pledge  a  warehouse  receipt  as  collateral  security;  for  in  such 
case  it  is  not  the  object  or  desire  of  the  parties  to  disturb  the 
custody  of  the  property  itself,  or  that  the  pledgee  should  take 
actual  manual  possession  of  the  property.  The  receipt  may 
represent  a  large  quantity  of  grain,  for  example,  stored  in  a 
warehouse;  the  object  of  the  pledgor  is  simply  to  use  this  re- 
ceipt, the  evidence  of  his  ownership,  as  security  for  a  loan  of 
money,  or  as  collateral  to  his  note  or  other  obligation;  he  has 
no  intention  of  transferring  the  title  to  the  property.  Upon 
payment  of  the  debt,  or  fulfillment  of  the  obligation,  it  is  in- 
cumbent upon  the  pledgee  to  return  the  receipt  which  is  the 
subject  of  the  pledge ;  and  so,  because  of  the  convenience  in 
doing  business,  the  custom  has  grown  up  to  simply  transfer 
to  the  pledgee  the  receipt  for  the  stored  property  indorsed 
in  blank,  to  be  returned  upon  the  full  performance  of  the  ob- 
ligation for  which  it  is  pledged,  and  generally  without  any  as- 
signment being  fully  written  over  the  indorsement  in  blank; 
for  the  delivery  of  the  receipt  thus  indorsed,  with  the  intention 
15  225 


263,  264:.] 


PLEDGE   OR   PAWN. 


[PAKT   II. 


of  pledging  the  same,  has  the  same  effect  as  the  delivery  of 
the  property  itself.^ 
§  263.  Pledge  created  by  mere  delivery  of  receipt. — 

There  is  no  particular  form  necessary  for  the  transfer  of  the 
receipt.  The  mere  delivery  of  the  receipt,  with  the  intention 
of  creating  the  pledge  as  between  the  parties,  is  enough  to  create 
an  equitable  lien,  and  the  pledgee  can  hold  the  property  de- 
scribed in  the  receipt.  The  owner  and  pledgor  would  be  estopped 
from  asserting  any  right  inconsistent  with  the  pledge. 

§  264.  Statutes  of  states  with  reference  to  pledgee  of 
warehouse  receipt. —  Many  of  the  states  have  enacted  stat- 
utes regulating  the  transfer  of  warehouse  receipts,  and  it  will 
be  necessary  to  examine  the  statute  of  the  particular  state  where 
the  transaction  occurs.  We  have  not  the  space  to  notice  and 
quote  these  statutes  here.  It  may  be  said,  however,  with  ref- 
erence to  these  statutes,  that  although  they  may  purport  to 
make  the  warehouse  receipt  negotiable,  all  that  can  in  fact  be 
done  is  to  cut  off  any  defense  which  the  indorser  may  have. 
The  holder  of  the  receipt  takes  no  better  title  than  he  would 
had  the  goods  and  chattels  described  been  actually  deliv- 
ered to  him ;  and  to  allow  the  transfer  of  the  receipt  merely 
to  pass  an  absolute  title  without  this  limitation  would  enable 
one  fraudulently  depositing  the  goods  of  another  to  dispose  of 
them  and  confer  a  valid  title,  even  as  against  the  true  owner, 
by  obtaining  a  warehouse  receipt  in  his  own  name.  Certainly 
this  would  be  against  public  policy .^ 


1  Jones  on  Pledges,  sec.  280.  See 
cases  cited.  Freiburg  v.  Dreyfus,  135 
IT.  S.  478;  Burton  v.  Curyea,  40  III 
320.  In  Citizens'  Bank  v.  Peacock, 
103  Ga.  171,  29  S.  E.  752,  it  was  held 
that  the  delivery  of  the  warehouse 
receipt  for  cotton  Is  in  effect  deliver- 
ing the  cotton  itself. 

2  Warehouse  receipts  are  not  nego- 
tiable instruments  in  a  commercial 
sense.  And  in  the  absence  of  a  right 
of  property  in  the  consignee  and  a 
power  to  sell,  the  consignee,  by  in- 
dorsement, cannot  confer  title  to  the 
property  as  against  the  true  owner. 
Dows  V.  Perrin,  16  N.  Y.  333.  Ware- 
house receipts  at  most  only  represent 


the  goods,  and  may  be  used  upon  a 
sale  as  a  symbolical  delivery.  3  Ellis 
&  Bl.  622.  A  transfer  of  the  receipt 
operates  as  a  delivery  of  the  goods  so 
long  as  the  goods  remains  in  the  pos- 
session of  the  warehouseman.  In 
fact,  the  possession  of  the  receipt  is , 
in  legal  effect  the  possession  of  the 
goods,  and  enables  the  holder  of  the 
goods  to  transfer  his  title  to  the  goods 
without  an  actual  manual  deliver} 
of  the  goods  themselves.  They  did 
not  add  to  his  title,  they  simply  gave 
him  the  possession.  Llckbarrow  vi 
Mason,  Smith's  Lead.  Cas.  755;  Sec 
ond  Nat.  Bank  v.  Walbridge,  190hM 
St.  419. 
i26 


OH.  III.]       NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE.       [§§  205-207- 

§  265.  If  the  receipt  is  made  to  bearer. —  It  goes  with- 
out saying  that  if  the  receipt  stipulates  that  the  property  is  to 
be  delivered  to  bearer,  then,  in  order  to  transfer  it,  it  would 
not  be  necessary  to  indorse  the  receipt,  but  the  mere  delivery 
of  the  receipt  would  be  sufficient  to  transfer  the  title  to  the 
property  if  it  was  made  with  that  intent.  It  therefore  follows 
that  such  a  receipt  may  be  made  the  subject  of  a  pledge  by 
merely  delivering  the  receipt  with  intention  to  pledge  it  as 
collateral  security  for  the  payment  of  the  debt  or  the  fulfilling 
of  the  obligation.^ 

Insurance  Policies. 

§  266.  Insurance  policies  as  collateral. —  An  insurance  pol- 
icy that  is  in  force  has  a  property  value,  depending,  of  course, 
very  largely  upon  the  stipulations  in  the  polic}'';  and  such  a 
policy  is  often  made  the  subject  of  a  pledge;  as,  for  example,  a 
fire  insurance  policy  is  often  assigned  with  a  real-estate  mort- 
gage given  upon  the  same  premises;  and  a  stipulation  written 
upon  the  policy  with  the  consent  of  the  company  and  by  its 
agent,  making  any  loss  payable  to  the  mortgagee  to  the  extent 
that  his  interest  may  appear,  creates  a  pledge  of  the  benefici- 
ary interest  of  the  policy.  A  life  insurance  policy,  fully  paid 
up  or  otherwise,  is  often  pledged  to  the  lender  of  money,  or  as 
security  for  the  performance  of  an  obligation  by  the  owner  of 
the  policy;  and  as  we  shall  see,  the  pledgee  thereupon  obtains 
an  interest  in  the  policy  which  the  company  must  recognize. 
The  fact  of  the  policy  being  the  subject  of  a  pledge  is  not  as 
troublesome  as  is  the  procedure  in  given  cases  to  create  the 
pledge  and  determine  the  liabilit3^ 

§  267.  Delivery  a  requisite. —  A  pledge,  from  its  very 

nature,  as  we  have  often  seen,  requires  a  delivery  and  accept- 
ance for  the  purpose  and  with  the  intention  of  creating  a 
pledge.  The  same  rule  obtains  in  the  pledging  of  policies 
of  insurance;  the  pledgee  must  have  the  property  pledged  in 
his  possession  and  control,  and  a  mere  promise  to  deliver  the 
property  is  not  enough.  If  such  a  promise  were  founded  upon 
a  valuable  consideration,  a  contract  to  pledge  might  furnish  a 
cause  of  action  if  the  pledgor  failed  to  perform  his  contract; 
but  that   question  Ave  are  not  discussing.      The   promise  to 

1  Jones  on  Pledges,  sec.  301. 
227 


§  268.]  PLEDGE    OK    PAWN.  [PAKT    II. 

pledge  does  not  create  a  pledge;  the  pledgee  must  have  pos- 
session of  the  property.  And  so  it  has  been  held  that  the 
mere  promise  of  a  policy  as  collateral  is  not  a  good  delivery,* 

The  vice-chancellor,  in  Spencer  v.  Clark  (cited  and  quoted 
from  in  the  note),  calls  attention  to  the  familiar  doctrine 
"that  as  between  two  persons  whose  equitable  interests  are  of 
precisely  the  same  nature  and  quality,  and  in  that  respect 
precisely  equal,  the  possession  of  the  deeds  gives  the  better 
equity."  And  so  the  authorities  and  adjudicated  cases  on  this- 
subject  are  replete  with  the  doctrine  that  to  effect  a  valid 
pledge  of  a  policy  of  insurance,  delivery  and  acceptance,  with 
the  intention  of  creating  the  pledge,  is  an  absolute  requisite; 
except,  of  course,  in  cases  where  a  regular  assignment  has  been 
fully  made  for  the  purpose  of  pledging  the  policy,  and  the 
company  has  been  notified,  and  a  transfer  made  on  their  books; 
or  in  case  the  transfer  has  been  made,  the  company  notified, 
and  a  custodian  agreed  upon  by  all  the  parties  for  the  purpose 
of  creating  the  pledge.  But  there  must  be  something  that  will 
operate  to  place  the  policy  under  the  obligation  of  the  pledge, 
and  in  the  control  and  custody  either  of  the  pledgee  or  his 
agent. 

§  268.  How  delivered. —  There  is  no  question  that  if 

the  policy  is  assigned  and  delivered  to  the  pledgee,  the  com- 
pany notified,  and  the  assignment  entered  upon  its  books,  for 
the  purpose  of  creating  a  pledge,  that  a  valid  pledge  of  the 
policy  is  made ;  and  in  case  of  loss,  recovery  could  be  had 

1  Spencer  v.  Clark,  L.  R  9  Ch.  Div.  to  B.  an  equitable  mortgage  of  it. 

137.     The  holder  of  a  policy  of  insur-  B.  gave  to  the  company  notice  of  his 

ance  on  his  own  life  deposited  it  with  loan  and  memorandum  of  deposit, 

A.  by  way  of  equitable  mortgage  to  and  frequently  applied  to  the  policy- 
secure  a  loan.  A.  retained  the  policy,  holder  for  the  policy;  but  the  policy- 
but  gave  no  notice  to  the  company;  holder  made  various  excuses  for  not 

B.  afterwards,  in  ignorance  of  this  handing  it  over,  and  died  leaving  it 
prior  mortgage,  agreed  to  loan  in  the  possession  of  A.  Held,  that 
money  to  the  policy-holder  upon  a  the  circumstances  of  the  case  were 
deposit  of  the  same  policy,  and  the  such  as  to  put  B.  on  inquiry  as  to  the 
policy-holder  alleging  that  he  had  time  of  the  loan,  and  to  fix  him  with 
left  the  policy  at  home  by  mistake,  constructive  notice  of  A.'s  security, 
and  promising  forthwith  to  deliver  and  that  the  title  of  A.  as  in  posses- 
it  to  B.,  took  the  loan  and  assigned  sion  of  the  policy  must  prevail  over 
the  memorandum  that  he  had  de-  that  of  B..  although  B.  did,  and  A. 
posited  the  policy  with  B.,  and  then  did  not,  give  notice  to  the  company, 
undertook,   on  request,   to  execute 

228 


€H.   III.]  NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE.  [§  269. 

against  the  company  by  the  pledgee.  A  very  much  less  formal 
transfer,  however,  is  sufficient.  The  courts  have  held  that  a 
pledge  of  the  policy  may  be  created  by  indorsement  in  blank 
and  delivery. 

§269.  By  indorsement  in  blank  and  delivery. —  An  in- 
dorsement in  blank,  and  delivery  and  acceptance  for  the  pur- 
pose of  creating  a  pledge,  has  been  held  to  be  sufficient.  In 
the  case  of  Norwood  v.  Ouerdon  ^  the  supreme  court  of  Illinois 
very  emphatically  laid  down  this  doctrine.  That  was  a  case 
where  the  husband  had  procured  his  life  to  be  insured  for  the 
benefit  of  his  wife.  She  afterwards  indorsed  the  policy  to  him 
in  blank,  left  it  in  his  possession,  and  he  secured  a  loan  upon 
the  policy,  pledging  it  as  collateral  security.  The  court  say: 
"Armed  with  this  evidence  of  his  right  to  pledge  the  instru- 
ment, he  goes  upon  the  money  market  and  does  pledge  it,  first 
to  one  person  and  then  to  another,  and  by  such  pledge  raises 
money  and  pays  his  debts.  It  is  not  in  evidence,  and  we  can- 
not presume,  that  the  wife  ever  had  any  interest  in  this  policy 
from  having  contributed  from  her  separate  estate  toward  the 
payment  of  the  premium.  .  .  .  But  whatever  her  interest, 
by  indorsing  the  policy  in  blank  and  delivering  it  to  her  hus- 
band she  clothed  him  with  all  necessary  evidence  of  a  power 
to  pledge  the  instrument  by  filling  up  her  blank  assignment, 
and  we  should  be  opening  a  door  to  the  grossest  frauds  if  we 
were  to  permit  the  wife,  after  having  done  all  this,  to  come 
forward  and  claim  that  her  husband  had  no  right  to  assign  the 
instrument.  These  assignments  are  valid,  and  are  recoo^nized 
by  the  companies.  They  are  also  of  daily  occurrence  in  the 
way  of  collateral  security;  and  where  a  policy  is  made  payable 
to  the  wife,  and  she  indorses  it  in  blank,  and  the  husband 
pledges  it,  we  are  wholly  at  a  loss  to  conceive  upon  what 
ground  it  can  be  claimed  tbat  such  an  assignment  is  not  valid 
in  a  court  of  equity."  The  indorsement  in  blank  and  the  de- 
livery of  the  policy  to  secure  the  debt,  intending  it  for  security, 
the  giving  up  of  the  amount  loaned  to  the  pledgor,  or  the  re- 
ceiving it  and  furnishing  the  consideration  by  the  pledgee,  will 
make  out  a  case  of  pledge,  and  will  give  to  the  pledgee  all  the 
title,  right  and  privileges  to  the  extent  of  his  pledge  which  the 
pledgor  had. 

1  CO  IlL  253. 
229 


§  270.]  PLEDGE    OR    PAWN.  [PAET    II. 

KoTES,  Bonds,  Mortgages. 

§  270.  Notes  and  mortgages,  and  bonds  and  mortgages, — 

A  note  or  bond  secured  by  a  mortgage  carries  with  it  the  mort- 
gage security;  so  when  the  note  by  indorsement  and  delivery, 
or  by  mere  delivery  when  indorsed  in  blank  or  payable  to 
bearer,  is  transferred,  it  carries  with  it  in  equity  the  mortgage 
security.  It  is  not  necessary  that  there  should  be  an  assign- 
ment of  the  mortgage;  the  indorsee  of  the  note  is  entitled  to 
the  benefit  of  the  mortgage  unless  there  is  special  provision  to 
the  contrary. 

In  Carpenter  v.  Longan  ^  it  was  held  that  "  the  assignment 
of  a  note  underdue  raises  the  presumption  of  the  want  of  notice, 
and  this  presumption  stands  until  it  is  overcome  by  sufficient 
proof.  The  case  is  a  different  one  from  what  it  would  be  if 
the  mortgage  stood  alone,  or  the  note  was  non-negotiable,  or 
had  been  assigned  after  maturity.  The  question  presented  for 
our  determination  is  whether  an  assignee,  under  the  circum- 
stances of  this  case,  takes  the  mortgage  as  he  takes  the  note, 
free  from  the  objections  to  which  it  was  liable  in  the  hands  of 
the  mortgao^ee.  We  hold  the  affirmative.  The  contract  as  re- 
gards  the  note  was  that  the  maker  should  pay  it  at  maturity 
to  any  lonajide  indorsee,  without  reference  to  any  defenses  to 
which  it  might  have  been  liable  in  the  hands  of  the  payee. 
The  mortgage  was  conditioned  to  secure  the  fulfillment  of  that 
contract.  To  let  in  such  a  defense  against  such  a  holder  would 
be  a  clear  departure  from  the  agreement  of  the  mortgagor  and 
mortgagee,  to  which  the  assignee  subsequently,  in  good  faith, 
became  a  part}''.  If  the  mortgagor  desired  to  reserve  such  an 
advantage,  he  should  have  given  a  non-negotiable  instrument. 
If  one  of  two  innocent  persons  must  suffer  by  deceit,  it  is  more 
consonant  to  reason  that  he  who  '  puts  trust  and  confidence  in 

1 16  Wall.  271;  Ober  v.  Gallagher,  the  benefit  of  the  deed  of  trust  given 

93  U.  S.  199;  New  Orleans  Canal  and  to  secure  them."    Powell  on   Mort- 

Banking  Co.  v.  Montgomery,  93  U.  S-  gages,  908;  1  Hill,  on  Mortgages,  572 

16.     "In  the  absence  of  proof  to  show  Reeves  v.  Scullj',  Walker's  Ch.  248 

when  promissory  notes  were  trans-  Bloomer  v.  Henderson,  8  ]\Iich.  395 

f erred  by  the  bailee, the  law  presumes  Cicotte    v.    Gagnier,    2    Mich.    381 

that    they    were,    when    underdue.  Pierce  v.  Faunce,  47  Me.  507;  Taylor 

taken  in  good  faith  by  the  transferee  v.  Page,  6  Allen,  86;  Cornell  v.  Hich- 

without  notice  of  any  infirmity  at-  ens,  11  Wis.  368;  Croft  v.  Bunster,  9j 

taohing  to  them,  and  he  is  entitled  to  Wis.  457. 

230 


CH.   III.]  NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE.  [§  270. 

the  deceiver  should  be  a  loser  rather  than  a  stranger.'  .  .  .  The 
transfer  of  the  note  carries  with  it  the  security,  without  any 
formal  assignment  or  delivery,  or  even  mention  of  the  latter. 
If  not  assignable  at  law,  it  is  clearly  so  in  equity.  When  the 
amount  due  on  the  note  is  ascertained  in  the  foreclosure  pro- 
ceeding,  equity  recognizes  it  as  conclusive,  and  decrees  accord- 
ingly. Whether  the  title  of  the  assignee  is  legal  or  equitable 
is  immaterial.  The  result  follows  irrespective  of  that  ques- 
tion. The  process  is  only  a  mode  of  enforcing  a  lien.  .  .  . 
All  the  authorities  agree  that  the  debt  is  the  principal  thing  and 
the  mortgage  an  accessory.  Equity  puts  the  principal  and 
accessory  upon  a  footing  of  equality,  and  gives  to  the  assignee 
of  the  evidence  of  the  debt  the  same  rights  in  regard  to  both. 
There  is  no  departure  from  any  principle  of  law  or  equity  in 
reaching  this  conclusion.  There  is  no  analogy  between  this 
case  and  one  where  a  chose  in  action  standing  alone  is  sought 
to  be  enforced.  The  fallacy  which  lies  in  overlooking  this  dis- 
tinction has  misled  many  able  minds,  and  is  the  source  of  all  the 
confusion  that  exists.  The  mortgage  can  have  no  separate  ex- 
istence. When  the  note  is  paid  the  mortgage  expires.  It  can- 
not survive  for  a  moment  the  debt  which  the  note  represents. 
This  dependent  and  incidental  relation  is  the  controlling  con- 
sideration, and  takes  the  case  out  of  the  rule  applied  to  choses 
in  action,  where  no  such  relation  of  dependence  exists.  Acces- 
sorium  non  ducit,  sequitur principale.''^ 

If  the  debt  is  evidenced  by  a  non-negotiable  bond  the  case 
would  be  different  as  to  equities,  and  the  pledgee  would  be  in 
the  same  position  as  though  a  non-negotiable  security  had  been 
pledged.  Bonds,  however,  are  sometimes  made  negotiable 
when  the  rule  applicable  to  negotiable  paper  would  apply.  If 
the  mortgage,  then,  is  to  secure  the  payment  of  a  negotiable 
note  or  a  negotiable  bond,  it  may  be  transferred  and  delivered, 
and  the  same  rights  and  privileges  would  obtain  in  the  case  of 
a  pledgee  as  in  case  of  a  purchaser;  and  if  the  note  or  bond 
were  underdue  at  the  time  of  the  pledge,  the  pledgee  would 
take  it  freed  from  equities  of  which  he  had  no  actual  notice; 
but  if  the  mortgage  secured  a  non-negotiable  instrument,  then 
the  pledgee  would  take  it  subject  to  equities  the  same  as  other 
non-negotiable  properties. 

231 


§§  271,  272.]  PLEDGE    OR    PAWN.  [PAKT    II. 

§  271.  Mere  delivery  as  a  pledge. —  Tn  either  case  the  note 
and  mortgage,  or  bond  and  mortgage,  may  be  delivered  as  a 
pledge  without  assignment  or  indorsement,  and  the  pledgee 
would  obtain  an  equitable  interest  in  the  security  which  could 
be  enforced.  But  the  note  or  bond  which  represents  the  in- 
debtedness must  be  delivered  with  the  mortgage.  "The  mort- 
gage security  alone,  without  the  personal  evidences  of  debt, 
conveys  no  right  or  title  to  the  assignee  and  is  a  nullity.  The 
mortgage  itself,  w^ithout  the  debt  to  sustain  it,  has  no  reason 
for  existence;  when  the  debt  is  paid  it  loses  its  vitality  as  a 
valid  instrument.  The  only  effect  of  the  assignment  of  a  mort- 
gage by  a  mortgagee,  where  given  to  secure  the  payment  of 
negotiable  collateral  notes  which  have  passed  into  possession 
of  third  persons,  indorsees,  for  value,  is  to  create  a  q^^a8i  or  sec- 
ondary trusteeship  on  the  part  of  the  assignee  in  favor  of  the 
indorsees  of  the  paper,  the  payment  of  which  is  secured  thereby. 
And  this  trusteeship  is,  upon  occasion,  enforced  by  courts  of 
equitable  jurisdiction.  The  assignee  of  a  mortgage  security, 
without  more,  obtains  no  title  or  interest  therein."  ^  If  the 
note  or  bond,  however,  be  pledged,  it  will  carry  with  it,  as  we 
have  seen,  the  mortgage  security. 

§  272.  Full,  complete  assignment  and  transfer — A  pledge 
or  a  sale. —  The  transfer  of  the  note  and  mortgage  is  not 
infrequently  made  by  an  absolute  assignment;  nothing  being 
shown  upon  the  face  of  the  transfer  to  indicate  that  it  is  as- 
signed merely  as  collateral  security  for  a  debt.  If  it  appears 
that  it  is  a  security  for  the  payment  of  a  debt,  it  w^ould  gener- 
ally, without  any  further  controlling  circumstances,  be  consid- 
ered as  a  pledge  rather  than  an  absolute  transfer  of  title.  At 
all  events,  a  court  of  equity  would  upon  proof  of  the  facts  (and 
they  may  be  proven  by  parol)  decree  the  transfer  to  be  a 
pledge  rather  than  a  sale.  The  maxim  often  quoted  and  re- 
lied upon  applies:  "Equity  considers  substance  rather  than 
form." 

iColebrooke,  Collateral  Securities,  44;  Dearborn  v.  Taylor,  18  N.  H.  153; 
185;  Wanzer  v.  Carey,  76  N.  Y.  526;  Delano  v.  Bennett,  90  111.  533:  Wat- 
Peters  V.  Jamestown  Bridge  Co.,  5  son  v.  Hawkins,  13  Iowa,  547;  Hamil- 
Cal.  334;  Jackson  v.  Blodgett,  5  Cow.  ton  v.  Lubukee,  51  111.  415;  Bailey  v. 
205;  Jackson  v.  Bronson,  19  Johns.  Gould,  Walk.  Ch.  478;  Martin  v.  Mc 
325;  Merritt  v.  Bartholick,  36  N.  Y.  Reynolds,  6  Mich.  78. 

232 


■CH.   III.]  NON-NEGOTIABLE    AND    QUASI-NEGOTIABLE.  [§  273. 

§  273.  Pledge  distinguished  from  chattel  mortgage. —  Gen- 
erally a  pledge  is  not  in  writing,  but  is  usually  created  by  a 
delivery  of  the  property,  and  continues  so  long  as  the  prop- 
erty remains  in  the  possession  of  the  pledgee  for  the  purposes 
of  the  pledge.  It  creates  a  lien  upon  the  property  by  reason  • 
of  the  delivery  and  acceptance  for  the  purposes  of  the  pledge. 
It  does  not  pass  the  title  of  the  property  with  a  defeasance 
clause,  and  ceases  when  the  pledgor  gives  up  his  possession  of 
the  property.  Continued  possession  on  the  part  of  the  pledgee 
is  a  requisite  to  a  pledge,  and  when  possession  is  abandoned 
the  pledge  will  be  held  to  be  abandoned.  On  the  other  hand, 
a  chattel  mortgage  is  in  writing,  and  upon  its  face  is  an  abso- 
lute sale  of  the  property  w4th  a  defeasance  clause  covenanting 
that  in  case  of  performance  upon  the  part  of  the  mortgagor, 
that  is,  payment  of  the  debt  as  stipulated,  the  sale  shall  be 
void.  Possession  in  the  case  of  a  chattel  mortgage  is  not  a 
requisite;  on  the  other  hand,  the  possession  of  the  property  is 
generally  left  with  the  mortgagor,  ''  The  essential  difference 
between  a  mortgage  and  a  pledge  as  a  matter  of  right  is  that 
in  the  one  case  the  title  passes,  in  the  other  it  does  not.  But 
the  difference  in  substance  and  in  fact  is,  that  in  the  case  of  a 
pawn  the  possession  of  the  article  must  pass  out  of  the  pawnor; 
in  the  case  of  a  mortgage  it  need  not;  and  in  determining 
whether  an  agreement  is  a  pledge  or  a  mortgage,  regard  must 
be  had  to  these  two  considerations."  ^ 

In  TannaJdll  v.  Tuttle  ^  it  was  held  that  "  by  a  mortgage  of 
chattels  the  whole  legal  title  of  the  property  passes  to  the 
mortgagee  conditionally,  and  to  defeat  such  title  the  mortga- 
gor or  those  claiming  under  him  must  show  a  performance  of 
the  condition.  The  statutes  of  the  states  usually  provide  that 
a  chattel  mortgage,  to  be  effective  as  against  subsequent  hona 
fide  mortgagees  or  purchasers,  or  creditors  of  the  mortgagor, 
must  be  filed  or  registered  as  provided  by  the  statute,  and  if  it 
is  not  and  there  is  no  actual  notice,  it  will  not  be  valid  except 
between  the  parties.  But  in  case  of  a  pledge,  there  is  no  such 
thing  required;  the  property  pledged  being  in  the  possession 
of  the  pledgee  is  notice  to  all  the  world  of  his  rights." 

iHaskins  v.  Pattison,  1  Edm.  Sel.     v.  Harrison,  105  U.  S.  401;  West  v. 
Cas.  (N.  y.)  201;     Schouler  on  Bail-    Crary,  47  N.  Y.  425. 
ments   and   Carriers,  sec.  107;    Par-        23  Mich.  104. 
fihall  V.  Eggert,  54  N.  Y.  18;  Hauselt 

233 


CHAPTEE  IV. 


PLEDGOR'S  RIGHTS  AND  LIABILITIES. 


i  274.  The  purpose  of  the  chapter. 

275.  Pledgor's  rights. 

276.  Pledgor    of   valuable    securi- 

ties —  Notes,  bonds,  mort- 
gages, etc. 

277.  The  pledgor  may,  under  cer- 

tain circumstances,  protect 
the  pledged  property  from 
injury. 

278.  Pledgor's  interest  subject  to 

judicial  process. 

279.  When    the    debt    secured    is 

barred  by  statute  of  limita- 
tion. 

280.  When  will  the  statute  of  lim- 

itations run  against  the 
pledgor. 

281.  The  pledgor's  right  to  redeem. 

282.  As  to  notice  of  intention  to 

redeem. 

283.  The   pledgor   impliedly  war- 

rants the  title  of  the  pledged 
property. 


284.  Rights,  duties  and  liabilitlea 
of  the  pledgee. 

The  potssession. 

The  pledge  an  incident  of  the 
debt  secured  and  assign- 
able. 

Assignment  of  secured   debt 
passes  equitable  interest  in 
pledged  property. 
288.  Rights  of  assignee  subject  to 
the  contract  of  pledge. 

May  repledge. 

Right  to  use  the  pledged  prop- 
erty. 

Expenses  and  profits. 

292.  Liability  for  loss  and  dam- 

age. 

293.  Payment     of     debt    releasee 

pledged  property. 

294.  A  tender  of  the  amount  due 

will  discharge  the  lien  of  the 
pledge. 


285. 
286. 


287. 


289. 
290. 

291. 


§  274.  The  purpose  of  the  chapter. —  The  rights  and  lia- 
bilities of  the  pledgor  depend  very  largely  upon  the  contract 
which  creates  the  pledge.  It  may  be  varied  as  the  parties  see 
fit.^  The  general  liability  of  the  pledgor  and  the  pledgee  have 
been  more  or  less  noticed  in  preceding  chapters  but  not  fully 
discussed.  In  this  chapter  it  is  our  purpose  to  call  attention  to 
rules  governing  these  rights  and  liabilities,  and  to  notice  some 


1  Drake  v.  White,  117  Mass.  10,  13. 
The  court  say:  "In  the  present  case 
the  parties  have  reduced  their  con- 
tract to  writing,  and  have  omitted 
to  attacli  to  the  defendants'  liability 
for  the  property  any  limitation  what- 
ever. On  the  contrary,  their  express 
promise  is  to  do  one  or  the  other  of 


two  things:  either  to  return  the  prop-  j 
erty  specifically,  or  to  pay  for  it  i» 
money.  There  can  be  no  doubt  that 
if  a  creditor  sees  fit  to  accept  a  de- 
posit of  security  upon  such  terms, 
and  to  place  himself  in  the  position 
of  an  insurer  for  its  safety,  he  canj 
legally  do  so." 


234 


CH.  IV.]  pledgor's  rights  and  liabilities.  [§  275. 

of  the  more  important  applications  of  the  rules  to  the  usual  and 
more  common  transactions  of  business;  and  in  this  connection 
it  may  be  said  that  the  reader  must  at  all  times  keep  in  mind 
that  a  pledge  or  pawn  belongs  to  that  class  of  bailments  known 
as  benefit  bailments,  where  ordinary  diligence  is  required  of 
the  parties.  Ko  matter  what  the  transaction  may  be,  it  is  this 
that  fixes  and  determines  the  rights  of  the  bailor  as  well  as  the 
bailee;  upon  this  does  their  liability  rest. 

§  275.  Pledgor's  rights. —  When  once  the  pledging  of  the 
])roperty  is   completed  and  the  pledgor  has    released  to  the 
pledgee  the  possession  of  the  same,  it  becomes  the  duty  of  the 
pledgee  to  exercise  that  ordinary  care  in  keeping  and  caring 
for  the  property  and  in  carrying  out  the  object  of  the  pledge 
that  is  required  in  all  mutual-benefit  bailments.     It  therefore 
follows  that  the  pledgor  has  the  right  to  demand  and  expect 
that  the  pledged  property  will  be  properly  cared  for;  that  is, 
that  it  will  have  bestowed  upon  it  such  care  as  the  ordinarily 
prudent  man  would  bestow  upon  his  own  property  of  like  kind 
and    value  under  just  such  circumstances.     The   pledgor,  in 
other  words,  has  the  right  to  have  his  property  protected  and 
cared  for  to  the  extent  that  the  particular  property  under  the 
circumstances  naturally  and  ordinarily  requires;  that  is  to  say, 
if  it  be  property  of  such  kind  as  requires  use  in  order  to  be 
properly  cared  for,  then  that  it  receive  such  use  as  its  partic- 
ular kind  requires,  and  if  for  want  of  such  use  the  property  is 
damaged,  it  follows  that  the  pledgor  could  sustain  an  action 
against  the  pledgee  for  not  doing  his  duty  in  that  regard. 
Whatever  is,  under  ordinary  circumstances,  required  to  be  done 
in  order  to  preserve  his  rights  and  interests,  the  pledgor  has  a 
right  to  demand  be  done  by  the  pledgee.     The  pledgor  is  en- 
titled to  have  the  property  so  used  and  protected  that  its  value 
shall  not  be  impaired,  and  this  rests  somewhat  upon  the  fact 
that  during  the  existence  of  the  pledge  the  property  is  in  the 
exclusive  possession  of  the  pledgee,  and  it  cannot  be  cared  for 
or  protected  by  the  owner  thereof,  as  he  is  not  entitled  to  its 
custody.     As,  for  example,   if  the  pledged   property  be  col- 
lateral security  in  the  hands  of  the  pledgee,  the  pledgor  has 
the  right  to  have  such  securities  protected,  and  if  the  pledgee, 
by  neglect  or  want  of  due  care,  loses  the  securities,  or  fails  to 
enforce  them  against  the  persons  liable  upon  them,  and  thereby 

235 


,§§  2TG,  277.]  PLEDGE    OE    PAWN.  [part    II. 

their  value  is  lost  or  impaired,  the  pledgor  would  have  an  ac- 
tion against  the  pledgee  for  such  loss  or  damage. 

§  276.  Pledgor  of  valuable  securities  —  Notes,  bonds, 
mortgages,  etc. —  In  these  days  of  business  activity  it  often 
happens  that  a  borrower  places  large  amounts  of  valuable  securi- 
ties, such  as  notes,  bonds,  mortgages,  stocks,  etc.,  in  the  hands 
of  his  banker,  or  other  person  from  whom  he  borrows  money 
to  secure  his  indebtedness.  To  such  creditors  who  thus  become 
bailees  of  the  securities,  this  rule  of  ordinary  diligence  applies; 
they  are  bound  to  exercise  that  degree  of  sound  judgment 
which  the  ordinarily  prudent  business  man  would  exercise  under 
like  circumstances  in  the  carrying  out  of  the  purposes  of  the 
trust  that  is  imposed  upon  them  by  the  bailor,  and  if  through 
negligence  they  fail  to  do  this  and  it  results  in  damage  to  the 
pledgor,  they  will  be  held  liable.^ 

§  277.  The  pledgor  may  under  certain  circumstances  pro- 
tect the  pledged  property  from  injury. —  While  the  law  pro- 
tects the  pledgee  in  the  possession  of  the  pledged  property, 
even  as  against  the  pledgor  during  the  continuance  of  the 
pledge,  giving  to  him  the  right  to  recover  it  if  it  is  taken  from 
him,  it  places  certain  duties  upon  the  pledgee,  making  it  in- 
cumbent upon  him  to  protect  the  interests  of  the  pledgor  in  the 
property,  to  the  extent,  at  least,  that  the  property  shall  not  in 
any  wise  suffer  damage  while  in  his  possession. 

This  right  to  protect  the  property  does  not  deprive  the 
pledgor  of  the  right  to  protect  his  own  interests  in  case  of  fail- 

1  Northwest  Nat.  Bank  v.  Thomp-  gence  the  pledgor  could  recover  of 

son  Mfg.  Co.,  71  Fed.   113.     "A  per-  the  pledgee  the  amount  of  the  un- 

son  having  notes  in  his  possession  as  collectible  collateral.     And  if  in  an 

collateral    security  for    a    debt    is  action  on  a  note  the  holder  fails  to 

bound,  so  far  as  the  general  owner  of  produce    or  account  for    collateral 

the  notes  is  concerned,  to  use  reason-  j^ledged   for  its  security,   the    note 

able  diligence  to  protect  the  security  may  be  credited  with  the  amount  of 

so  held  and  see  that  it  is  not  out-  the  collateral."  Mansur-Tebbetts  Im- 

lawed;  and  where  a  debtor  pledged  plement  Co.  v,  Carey  et  al.,  45  S.  W. 

notes  of  solvent  persons  which  could  120.     In  Anderson  et  al.  v.  Carothers 

with  reasonable  diligence  on  the  part  et  al.,  18   Wash.  520,  a  creditor  ac- 

of  the  pledgee  have  been  collected  cepted  a  transfer  of  sheep  as  collat- 

at  maturity,  but  thereafter  while  in  eral  security,  agreeing  to  sell  them 

the  hands  of  the  pledgee  the  notes  and  retain  out  of  the  proceeds  the 

became  uncollectible  because  of  the  amount  of  his  claim.  The  court  held, 

insolvency  of  the  maker,  held,  that  "  in  an  action  brought  by  a  creditor, 

in  the  absence  of  a  showing  of  diii-  that  carelessness  of  the  pledgee  in 

336 


CH.  IV.]  pledgor's  eights  and  liabilities,  [§  277, 

ure  on  the  part  of  the  pledgee  to  do  so,  and  this  right  may  be 
exercised  by  the  pledgor  against  the  pledgee  when  it  becomes- 
necessary  to  do  so  to  protect  himself  from  loss.  As,  for  ex- 
ample, where  negotiable  paper  has  been  pledged  as  collateral 
security,  it  is  the  dut}'  of  the  pledgee  to  make  collection  of  such 
paper  when  it  falls  due;  should  he  fail,  however,  to  do  so  to 
the  prejudice  of  the  rights  of  the  pledgor,  the  pledgor  may  pro- 
ceed to  the  collection  of  the  amount  due;  or,  should  it  appear 
that  the  paper  was  about  to  be  outlawed,  he  could  bring  an  ac- 
tion against  the  maker  before  the  expiration  of  the  statutes  of 
limitation  and  thus  protect  his  interests.  Indeed,  it  is  his 
right,  upon  failure  of  the  pledgee  to  do  what  is  necessary  to  be 
done,  to  protect  his  own  interests.^  In  Whitaker  v.  Sumner'^ 
the  court  say :  "  It  seems  now  well  settled  that  when  personal 
property  is  under  a  pledge  or  lien,  whether  created  by  opera- 
tion of  law  or  by  the  act  of  the  owner,  the  general  property 
remains  in  the  owner,  and  he  may  transfer  it  by  a  proper 
contract  and  upon  a  good  consideration,  subject  only  to  the 
lien.  And  in  such  case,  as  the  actual  custody  and  possession  of 
the  goods  for  the  time  being  is  in  the  hands  of  the  party  hav- 
ing the  lien,  it  follows  that  a  constructive  or  symbolical  deliv- 
ery is  sufficient  to  pass  the  property.  An  order  by  the  vendor 
upon  the  keeper,  or,  if  the  contract  of  sale  or  conveyance  be 
in  writing,  proper  and  satisfactory  notice  of  the  conveyance 
by  the  vendee  to  the  holder,  constitutes  such  constructive  de- 
livery. AVhere  goods  are  lying  in  a  warehouse,  although  sub- 
ject to  a  lien  for  keeping,  notice  to  the  warehouse-keeper,  where 
all  the  other  requisites  of  a  sale  are  proved,  is  equivalent  to  a 
delivery.  After  such  notice  the  keeper  ceases  to  be  the  agent 
of  the  vendor  and  becomes  the  agent  of  the  vendee,  and  thus 
the  goods  are  placed  under  the  effective  control  of  the  vendee, 
as  they  would  be  by  an  actual  delivery."     The  buyer  in  such 

keeping,  and  failing  to  sell  the  sheep  him  to  another  person  as  collateral 
until  after  the  market  had  fallen,  does  not  withdraw  entirely  from 
and  not  properly  caring  for  them,  him  the  power  of  protecting  his  in- 
constituted  a  ground  of  counter-  terests  by  proceeding  against  the 
claim  on  an  action  to  recover  the  maker  of  the  notes." 
debt."  2  20  Pick.  (Mass.)  399;  Tux  worth  v. 
1  O'Kelley  V.  Ferguson,  49  La.  Ann.  Moore,  9  Pick.  ,-347;  Fettyplace  v. 
1230.  "The  fact  that  a  party  has  Dutch,  13  Pick.  3S8;  Bush  v.  Lyon,  » 
transferred    certain    notes  held   by  Cowen  (N.  Y.),  53. 

237 


§  277.]  PLEDGE    OE    PAWN.  [PART    II. 

case  takes  all  the  rights  of  the  pledgor,  and  may,  because  of 
his  ownership  of  the  property,  recover  the  possession  of  it  in 
the  same  manner  that  the  pledgee  could  have  recovered  had 
he  remained  the  owner.  He  may  tender  payment  of  the 
amount  due  to  the  pledgee  and  demand  the  return  to  himself 
of  the  subject  of  the  pledge,  if  this  would  not  be  a  violation 
of  the  pledge  contract,  and,  if  the  possession  is  refused,  may 
sustain  an  action  of  replevin  or  trover.  The  rule  is  that  the 
buyer  may  take  upon  himself  all  the  obligations  resting  upon 
the  pledgor,  even  to  becoming  personally  liable  for  the  per- 
formance of  the  contract.^  The  assignee  or  purchaser  should, 
however,  give  the  pledgee  notice  that  he  has  purchased  the 
property  and  is  the  owner  of  it;  this  would  be  necessary  often 
for  his  own  protection,  for  without  notice  that  the  purchaser 
had  assigned  or  sold  the  property,  the  pledgee  might  make 
payment,  or  even  return  the  property  to  the  pledgor  and  be 
protected  from  any  action  brought  by  the  assignee;  but  with 
such  notice  to  the  pledgee  of  the  assignment  or  sale  of  the 
property,  it  w^ould  be  held  subject  to  the  ownership  of  the  as- 
signee or  vendee;  and  if  the  pledged  property  should  be  sold 
on  account  of  the  default  of  the  pledgor  or  his  assignee  to  per- 
form the  pledged  contract  or  obligation,  the  assignee  or  buyer 
of  the  property  would  be  entitled  to  any  surplus  over  and 
above  the  amount  necessary  to  discharge  the  obligation  for 
which  the  property  w^as  pledged.^ 

1  Dupre  V.  Fall,  10  C'al.  430.  "  F.  and  note  and  interest;  F.  declined  to  de- 

H.  made  and  delivered  to  S.  a  joint  liver  the  note,  and  D.  brought  suit 

and    several    promissory    note    for  to  recover  the  amount  of  F.  and  H., 

$4,500;    afterwards,   and  before  the  less    the    $1,000    note  and  interest, 

maturity  of  this  note,  S.  gave  his  Held,   that  the    suit  was    properly 

notefor  $1,000,  with  large  interest,  to  brought,  and  that  D.  is  entitled  to 

C,  and  indorsed  and  delivered,  as  col-  recover  on  the  note  against  F.  and 
lateral  security,  the  note  of  F.  and  H.,  less  the  amount  of  the  $1,000  note 
H.  for  $4,500.     C.   subsequently  as-  and  interest." 

signed  S.'s  note  of  $1,000  to  F.  and  de-  2  in  Van  Blarcom  v.  Broadway 
livered  the  note  of  F.  and  H.  as  col-  Bank,  37  N.  Y.  540,  the  court  say: 
lateral  security,  or  as  he  held  it.  "  The  accountability  of  the  defend- 
After  this  S.  sold  and  assigned  the  ant  was  in  no  respect  changed 
note  of  F.  and  H.  ($4,500)  then  in  the  thereby,  and  the  defendant  had  only 
possession  of  F.,  to  D.,  the  plaintiff;  a  right  to  claim,  as  a  charge  against 

D.  subsequently  demanded  of  F.  the  the  proceeds  arising  upon  the  sale 
$4,500  note,  offering  to  credit  the  of  the  stocks,  such  amount  as  would 
same  with  the  amount  of  the  $1,000  have  been  necessary  for  the  plaint- 

238 


OH.  IV.]  pledgor's  eights  and  liabilities.  [§  278. 

§  278.  Pledgor's  interest  subject  to  judicial  process. —  At 

common  law  the  interest  of  the  pledgor  was  not  subject  to 
process  for  claims  against  him,  or  to  writ  of  execution.^  The 
right  of  the  pledgee  to  the  possession  of  the  property  was  re 
spected.  Statutes  in  many  of  the  states  have  made  changes 
in  this  respect  and  provided  procedure  by  which  the  interest 
of  the  pledgor  may  be  subjected  to  judicial  process  for  the  col- 
lection of  judgments  against  him.^ 

In  the  case  of  Pomeroy  v.  Smithy  the  plaintiff  proved  that 
the  property  in  question  had  been  pledged  and  delivered  to  him 
by  the  owner  as  collateral  security  for  the  payment  of  a  debt, 
and  to  indemnify  him  against  certain  liabilities  which  he  had 
incurred  for  the  pledgor.  After  the  goods  were  delivered 
they  were  seized  upon  a  writ  of  attachment  as  the  property  of 
the  pledgor.  The  contention  upon  the  part  of  the  defendant 
was  that,  if  the  plaintiff  was  entitled  to  a  verdict,  he  should 
only  be  allowed  to  recover  such  a  sum  as  would  discharge  the 
debt  due  to  him  from  the  pledgor,  and  be  suiBcient  to  indem- 
nify him  against  the  liabilities  he  had  assumed.  But  the  court 
below  held  that  the  plaintiff  was  entitled  to  recover  damages 
to  the  full  value  of  the  goods  that  had  been  taken  from  him 
upon  the  writ,  and  judgment  was  had  in  accordance  with  this 
holding.  Chief  Justice  Shaw,  delivering  the  opinion  of  the 
court,  held  that  the  court  below  was  right  in  directing  that 
the  value  of  the  ffoods  should  be  the  rule  of  damao-es.  In  the 
course  of  the  opinion  the  court  said:  "  But  neither  by  the  com- 
mon law  nor  by  force  of  statute  was  this  property  laAvfully 
attached.  By  the  statute  two  modes  of  attaching  property 
pledged  or  mortgaged  are  prescribed:  one  by  the  summoning 
of  the  pledgee  as  the  trustee  of  the  debtor;  the  other  by  first 
tendering  the  amount  for  which  the  goods  stand  subject."* 

iffs  to  have  tendered  on  the  day  of  nesota,  New  Hampshire,  New  York, 

the  assignment,  with  Interest  and  Texas,  Vermont  and  Wisconsin, 

expenses,  to  cancel,  pay  up  and  dis-  ^  17  Pick.  85. 

cliarge  the  claim  of  the  defendant,  *  In  Treadwell  v.  Davis,  34  Cal.  601, 

by  the  pledge  of  the  stock,  and  not  the  court  say:  "Whilst  the  interest 

beyond  that  sum."  of  the  pledgor    may    therefore    be 

1  Wilkes  et  al.  v.  Ferris,  5  Johns,  reached  under  an  execution,  it  can 
336.  only  be  done  by  serving  a  garnish- 

2  California,  Georgia,  Indiana,  ment  on  the  pledgee,  and  not  by  a 
Maine,  Massachusetts,  Michigan,  Min-  seizuie  of  the  pledge.   The  law  wisely 

239 


§§  279,  280.] 


PLEDGE    OE    PAWN. 


[part    II, 


§  279.  When  the  deht  secured  is  barred  by  statute  of  lim- 
itations.—  The  fact  that  the  debt  for  the  payment  of  which 
the  property  is  pledged  is  barred  by  the  statute  of  limitations 
will  not  release  the  property,  and  the  pledgor  cannot  on  this 
account  compel  the  surrender  to  him  of  securities  or  property 
pledged  without  paying  the  indebtedness.  The  pledgee  or 
pledgor  may  not  be  able,  because  of  the  statute  of  limitations, 
to  sue  upon  the  indebtedness  and  obtain  a  judgment;  the  stat- 
ute may  be  a  complete  defense  to  such  an  action;  but  he  can 
hold  the  pledged  property  for  its  payment,  and,  if  default  is 
made,  may  foreclose  the  pledge  and  sell  the  property  for  the 
payment  of  the  indebtedness.  The  contract  of  pledge  may  be 
enforced  and  the  property  subjected  to  the  payment  of  the  debt 
to  secure  which  it  is  pledged ;  even  though  the  debt  secured  is 
outlawed  the  law  will  require  a  fulfillment  of  the  pledge.^ 

§  280.  When  will  the  statute  of  limitations  run  against 
the  pledgor. —  The  statute  of  limitations  will  not  begin  to  run 
against  the  pledgor  until  he  has  made  a  tender  of  the  amount 


provides  that  the  pledgee  shall  not 
be  disturbed  in  his  possession  unless 
it  be  by  an  order  of  the  court  made 
after  examination,  'on  such  terms  as 
naay  be  just,  having  reference  to  any 
liens  thereon  or  claims  against  the 
same.'  In  this  method  the  rights  of 
all  parties  may  be  protected;  and  it 
is  the  only  method  by  which  the  in- 
terest of  the  pledgor  can  be  subjected 
to  an  execution."  Reicheubach  v. 
McKee,  95  Pa.  St.  432.  "  In  the  case 
of  a  pawn  or  a  pledge  there  is  a  sjie- 
cial  property  in  the  pawnee.  It  is 
liable  to  be  sold  on  an  execution 
against  the  pawnor,  but  subject  to 
the  rights  and  interests  of  the 
pawnee.  The  taking  of  the  property 
out  of  the  possession  of  the  pawnee 
by  a  sherifif's  sale  does  not  divest  his 
property  and  is  in  no  sense  a  relin- 
quishment of  his  lien,  and  a  bona  fide 
purchaser  from  a  sheriff's  vendee 
takes  it  subject  to  said  lien.  The 
sheriff  sells  only  the  title  of  the  de- 
fendant in  an  execution,  and  the  real 
owner,  besides  trespass  against  the 


sheriff,  may  maintain  replevin  or 
trover  against  his  vendee."  Baugh 
v.  Kirkpatrick,  54  Pa.  St.  84.  "An 
execution  cannot  take  goods  out  of  a 
jjawnee's  possession  without  tender- 
ing him  the  money  for  which  he  holds 
them  in  pledge."  Briggs  v.  Walker, 
21  N.  H.  72;  Mechanics'  Bldg.  &  Loan 
Ass'n  v.  Conover,  14  N.  J.  Eq.  219. 

'  In  Tembler  v.  Palestine  Ice  Co., 
17  Tex.  App.  596,  43  S.  AV.  896,  the 
court  say:  "  A  pledgee  of  stock  may 
enforce  payment  of  his  debt  by  a  sale 
of  it,  though  the  debt  be  barred  by 
statute  of  limitation."  In  re  Oakley 
et  al.,  2  Edw.  Ch.  (N.  Y.)  278;  Gage  v. 
Riverside  Trust  Co.,  86  Fed.  984.  "A 
pledgor  cannot  compel  the  surrender 
to  him  of  securities  pledged  with- 
out paying  the  indebtedness,  on  the 
ground  that  the  statute  of  limita- 
tions has  run  against  it;  and  further, 
he  will  be  estopped  from  setting  up 
the  statute  where  in  his  complaint, 
in  an  action  between  the  parties,  he 
has  admitted  and  alleged  the  indebt- 
edness." 


240 


CH.  IV.]  pledgok's  eights  and  liabilities.  [§  281. 

of  the  debt  for  which  the  property  is  pledged  and  the  pledgee 
has  refused  to  restore  the  property  held  by  him  as  security  for 
the  indebtedness;  until  this  is  done  no  action  could  accrue  in 
favor  of  the  pledgor  for  the  recovery  of  the  property,  and  there- 
fore the  statute  of  limitations  would  not  commence  to  run  until 
the  action  was  ripe.  "Mere  delay  on  the  part  of  the  pledgor 
to  claim  a  redemption  of  the  pledge  for  a  period  shorter  than 
the  time  prescribed  by  the  statute  of  limitations  as  a  bar  to  an 
action  on  the  debt  for  which  the  pledge  was  held  would  not 
suffice  to  raise  a  presumption  against  the  right  of  the  pledgor 
to  redeem."  ^  It  is  evident  that  the  pledgor  would  not  be  barred 
by  the  statute  until  the  full  term  had  run  after  his  right  of 
action  had  accrued. 

Judge  Story  in  his  work  on  Bailments  -  says:  "  If  the  pawnee 
does  not  choose  to  exercise  his  acknowledo^ed  rio^ht  to  sell,  he 
still  retains  the  property  as  a  pledge,  and  upon  a  tender  of  the 
debt  he  may  at  any  time  be  compelled  to  restore  it;  for  pre- 
scription or  the  statute  of  limitations  does  not  run  against  it." 
And  he  further  adds:  "After  a  long  lapse  of  time,  if  no  claim 
for  a  redemption  is  made,  the  right  will  be  deemed  to  be  ex- 
tinguished and  the  property  will  be  held  to  belong  absolutely 
to  the  pawnee."  It  is,  however,  difficult  to  conceive  of  a  case 
where  the  pledgor  would  by  delay  forfeit  his  right  to  redeem. 
That  right  is  a  vested  property  right,  and  is  as  absolute  as  is 
the  equity  of  redemption  in  a  mortgagor. 

§  281.  The  pledgor's  right  to  redeem.— This  is  a  right  of 
which  the  pledgor  cannot  be  deprived,  even  if  the  contract  or 
agreement  creating  the  pledge  contains  a  covenant  upon  the 

1  Whelen's     Ex'r     v.     Kingsley's  pledge  are  continued  by  mutual  con- 

Adm'r.  26  Ohio  St.  131.     "Whatever  sent." 

the  rule  may  be  in  cases  where  the  ^Story  on  Bailments,  sec.  346;  Cross 
pledgor  makes  no  claim  for  redemp-  v.  Eureka  Lake,  etc.  Canal  Co.,  73 
tion  until  after  the  right  of  the  Cal.  302.  "  A  pledgee  of  shares  of  the 
pledgee  to  recover  his  debt  is  barred  capital  stock  of  a  corporation  has  a 
by  the  statute  of  limitations,  we  are  right  to  retain  their  possession  until 
quite  satisfied  that  mere  delay  for  a  the  debt  to  secure  which  they  are 
shorter  period  of  time  will  not  suffice  pledged  is  satisfied;  and  while  so 
to  raise  a  presumption  against  his  holding  he  cannot  claim  them  ad- 
right  to  redeem.  Until  such  bar  versely  and  therebj-  acquire  a  title 
against  the  debt  is  fixed  it  must  be  under  the  statute  of  limitations." 
presumed  that  the   credit  and  the  Hancock  v.   Franklin  Ins.  Co.,  114 

Mass.  155. 
16  241 


§  262.J  PLEDGE    OK    PAWN.  [PAKT    II. 

part  of  the  pledgor  that  the  property  shall  become  irredeem- 
able upoa  failure  to  pay  or  perform  the  obligation  for  which 
the  property  is  pledged.  Public  policy  demands  that  the 
pledgor  shall  at  all  times  prior  to  the  sale  of  the  pledged  prop- 
erty upon  foreclosure  have  a  right  to  redeem  it,  and  a  contract 
of  pledge  containing  an  agreement  or  provision  depriving  the 
pledgor  of  the  right  to  redeem  is  held  to  be  void  in  that  respect.^ 
If  after  the  pledge  has  been  executed  and  the  property  delivered 
the  parties  should  desire  to  cut  off  the  right  to  redeem,  that  is, 
to  fix  a  time  or  a  condition  upon  which  the  title  to  the  prop- 
erty should  become  vested  in  the  pledgee,  they  may  do  so;  and 
such  a  contract  or  agreement  would  not  be  considered  void, 
for  the  reason  that  the  pledgor  would  have  a  perfect  right  to 
make  such  a  conditional  sale  of  his  equity  of  redemption.  Un- 
less, howxver,  such  a  subsequent  contract  has  been  made  dis- 
posing of  his  right  to  redeem,  the  pledgor  may  before  the  prop- 
erty is  sold  upon  foreclosure  of  the  pledge  redeem  by  payment 
of  the  debt  or  performance  of  the  obligation ;  and  if  in  the  con- 
tract pledging  the  property  no  particular  time  is  fixed  for  re- 
demption, he  may  redeem  at  any  time;  if  the  contract,  however, 
fixes  a  time  for  redeeming  by  the  pledgor,  he  could  not  re- 
deem at  any  time  before  the  expiration  of  the  time  fixed;  but 
the  right  to  redeem  at  any  time  after  the  time  fixed,  and  before 
the  foreclosure  sale,  would  not  be  cut  off  by  such  a  contract. 

§  282.  As  to  notice  of  iuteutiou  to  redeem.  —  There  are 
cases  where  the  courts  have  held  that  the  pledgee  was  entitled 
to  a  reasonable  notice  of  the  pledgor's  intention  to  redeem  in 
order  that  he  might  produce  the  bailed  property  and  become 

iln  Vickers  v.  Battershall  etal.,  32  Forfeitures  are  abolished  under  our 
N.  Y.  Sup.  314,  the  court  held  that  law,  and  the  rule  is  firmly  established 
"  where  a  note  was  assigned  as  col-  that  under  every  instrument  given 
lateral  security  the  debtor  may  re-  as  security,  the  borrower  has  a  right 
deem  on  payment  of  the  debt  though  to  redeem  upon  payment  of  the  loan."' 
the  assignment  contained  a  provis-  Clark  v.  Henry,  2  Cow.  324.  In 
ion  that,  in  case  the  debt  should  not  Peugh  v.  Davis,  96  U.  S.  332,  the 
be  paid  at  maturity,  the  note  should  circuit  court  of  the  United  States 
belong  to  the  assignee.  Anequitj'of  stated  the  rule  to  be  that  the  right 
redemption  attached  to  the  note  in  to  redeem  cannot  be  waived  or  aban- 
the  plaintitf's  hands,  and  nothing  doned  by  any  stipulation  of  the  par- 
could  destroy  that  equity  except  a  ties  made  at  any  time,  even  if  em- 
judgment  of  foreclosure  rendered  by  bodied  in  the  mortgage.  Lucketts 
a  court  of  competent  jurisdiction,  v.  Townsend,  49  Am.  Dec.  723. 


242 


i 


CH.   IV.]  rLEDGOE's    EIGHTS    AND    LIABILITIES.  [§  282. 

assured  that  the  indebtedness  had  been  canceled,  or  that  the 
pledgor  had  not  waived  his  right  to  redeem.  These  courts 
seem  to  proceed  upon  the  theory  that  it  is  no  moye  than  just 
in  certain  cases  that  the  pledgee  should  have  a  reasonable  time 
to  deliver  up  the  pledged  property  after  the  intention  of  the 
pledgor  is  made  manifest.  The  supreme  court  of  Georgia,  in 
McCalla  v.  Clark^  entertains  this  theory,  holding  to  the  gen- 
erally accepted  doctrine  that  "  tender  of  the  debt  on  the  day 
it  becomes  due  determines  the  creditor's  right  to  retain  posses- 
sion of  a  pledge  held  as  collateral  security;  and  it  is  im- 
mediate conversion  for  him  to  refuse  the  tender  and  retain 
the  pledge  on  a  claim  of  title  based  upon  an  alleged  forfeiture 
for  delay  to  make  payment;"  and  further  holding  that  "if 
the  debtor  be  himself  in  default  by  reason  of  having  delayed 
payment  beyond  maturity  of  the  debt,  a  like  refusal  and 
claim  by  the  creditor  will  not  amount  to  a  conversion,  if,  on 
the  same  day  of  the  tender,  before  suit  is  brought,  and  be- 
fore the  situation  of  the  parties  is  materially  changed,  he 
retracted  his  refusal,  after  taking  the  advice  of  counsel  and 
then  offer  to  accept  the  tender  and  restore  the  pledge,  provided 
the  tender  be  enlarged  so  as  to  cover  charges  on  the  pledge 
which  the  creditor  has  lawfully  paid  prior  to  the  tender."  And 
in  Dewart  v.  Masser"^  the  court  held  that  "  where  the  pledgee 
had  become  surety  upon  notes  for  the  pledgor,  and  the  pledgor 
had  redeemed  by  paying  the  notes  or  discharging  the  indebt- 
edness, that  in  such  case  the  pledgee  was  entitled  to  notice  of 
such  payment  or  discharge  of  the  notes  and  reasonable  time 
to  become  assured  of  the  fact  of  the  payment.  So  it  would 
seem  that  in  these  two  classes  of  cases  the  pledgee  would  be 
entitled  to  reasonable  notice,  to  wit,  where  a  long  time  has 
expired  after  the  paper  becomes  due  for  which  the  property 
was  pledged,  and  the  pledgor  has  been  in  default;  and  second, 
in  cases  whore  the  pledgee  has  become  surety  and  held  the 
property  to  secure  him,  he  would  be  entitled  to  notice  that  the 
note  or  the  paper  upon  which  he  has  become  surety  has  been 

i55Ga.  53;  Dewart  v.   Masser,   40    mand  made,  or  at  least  until  he  has 
Pa.  St.  303.      "  A  bailee  who  has  re-    notice  that  the  debt  as  security  for 
ceived  property  to  hold  as  security    which  he  holds  the  pledge  has  been 
for  the  payment  of  a  debt    is  under    discharged." 
no  oliligation  to  return  it  until  de-        -  40  Pa.  St.  303. 

243 


§§  283,  284.]  PLEDGE    OE   PAWN.  [PART    II. 

discharged  and  a  reasonable  time  to  determine  for  himself  that 
fact." 

§  283.  The  pledgor  impliedly  warrants  the  title  of  the 
pledged  property. —  The  rule  that  the  pledgor  impliedly  wsly- 
rants  that  he  is  the  owner  of  the  pledged  property,  or  has  such 
an  interest  or  ownership  as  legally  entitles  him  to  pledge  it  as 
security  for  the  payment  of  the  debt  or  performance  of  the  ob- 
ligation, is  analogous  to  the  rule  that  obtains  in  the  law  of 
sales,  which  holds  that  the  vendor  impliedly  warrants  that  he 
is  the  owner  of  the  property  sold ;  and  following  the  analogy 
in  this  case,  the  bailor  is  liable  in  damages  where  the  owner- 
ship or  any  part  of  it  is  not  in  him,  and  by  reason  of  the  de- 
fective title  the  pledgee  is  deprived  of  the  property  pledged.^ 

If  the  pledgor  undertakes  to  pledge  the  property  of  another 
without  his  consent,  he  would  be  estopped  from  denying  at  any 
time  that  he  was  not  the  owner  of  the  property,  and  would 
not  be  allowed  to  invalidate  the  pledge  or  deprive  the  pledgee 
of  the  property;  and  although  he  was  not  the  owner  of  the 
property  at  the  time  the  pledge  was  consummated,  but  after- 
wards obtained  the  title,  his  ownership  of  the  property  woukl 
relate  back  to  the  time  of  the  making  of  the  pledge,  and  would 
inure  to  the  benefit  of  the  pledgee.  In  this  the  rule  accords 
with  that  which  obtains  in  sales  and  transfers  of  personal 
property,  and  in  cases  of  conveyance  of  real  property  with 
covenants  of  seizin  and  warranty.^ 

§  284.  Rights,  duties  and  liabilities  of  the  pledgee.^— We 
have  already  considered  this  subdivision  in  many  of  its  fea- 
tures in  our  treatment  of  various  subjects,  and  little  is  left 
to  be  particularly  noticed  except  to  call  attention  to  some 
certain  phases  not  sufficiently  explained.  The  general  prin- 
ciples governing  this  class  of  bailments  suggest  the  course  of 
discussion.  Possession,  care,  custody  and  return  of  the  prop- 
erty is  the  natural  course  of  the  pledge  contract  if  it  is  ful- 
filled and  the  indebtedness  or  obligation  discharged.  If  the 
pledgor  fails  to  pay  or  discharge  the  obligation,  then  a  fore- 
closure of  the  pledge  and  all  the  rights,  duties  and  obligations 
incident  thereto;  but  this  would  belong  more  logically  to  an- 
other subdivision,  namely,  the  rights  and  duties  of  the  parties 
after  the  default  of  the  pledgor. 

1  Mairs  v.  Taylor,  40  Pa.  St.  446.  2  Goldstein  v.  Hort,  30  Cal.  372. 

244 


CH.  IV,]  pledgor's  eights  and  liabilities.     [§§  285,  286. 

§  285.  The  possession. —  As  we  have  already  seen,  posses- 
sion of  the  pledged  property  must  necessarily  be  with  the 
pledgee  or  his  assignees;  it  is  a  requisite  of  the  pledge,  a  sym- 
bol of  the  security  guaranteed  by  the  pledged  property,  and 
so  the  pledgee,  as  long  as  he  remains  the  creditor  or  obligee  of 
the  pledgor,  is  entitled  to  the  possession  of  the  property 
pledged ;  it  stands  as  his  security  for  the  indebtedness  or  obli- 
gation, guaranteeing  payment  or  performance,  and  this  pos- 
session becomes  a  vested  property  interest  in  the  pledgee, 
which  he  owns  as  much  as  he  owns  his  horse  or  any  other 
chattel,  nor  can  he  be  deprived  of  it  any  more  easily.  Until 
the  debt  or  obligation  is  discharged  the  pledgee  may  hold  and 
possess  the  pledged  property,  and  cannot  be  deprived  of  it  ex- 
cept by  his  own  voluntary  act,  or  by  due  process  of  law.^ 

§  286.  The  pledge  an  incident  of  the  debt  secured,  and 
assignable. —  A  pledge  to  secure  the  payment  of  a  debt,  or  the 
performance  of  an  obligation,  is  more  than  a  mere  bailment; 
it  becomes  a  part  of  the  transaction  or  contract  to  pay  or  per- 
form the  obligation;  it  is  an  incident  to  the  debt  itself  and 
cannot  be  separated  from  it;  therefore  it  is  held  that  to  make 
an  effectual  sale,  both  the  pledge  and  the  debt  must  pass  to 
the  assignee.-     Possession,  as  has  been  said,  is  a  requisite  to  a 

1  Yeatman  v.  Savings  Inst.,  95  U.  S.  him  the  benefit  of  any  pledge  which 
764.  "Until  he  shall  be  paid,  the  he  holds  to  secure  the  payment  of 
pledgee  is  entitled  to  the  possession  such  debt.  So  long  as  nothing  is  done 
of  the  property  which  he  holds  under  to  deprive  the  pledgor  of  the  right 
a  valid  pledge  as  security  for  his  to  redeem  on  payment  of  the  amount 
debt  against  the  pledgors,  notwith-  due  on  the  principal  debt  the 
standing  a  subsequent  adjudication  pledgor  is  not  injured."  Jarvis  v. 
of  bankruptcy  against  them;  and  Rogers,  15  Mass.  389;  Whitaker  v. 
his  refusal  to  surrender  it  to  their'  Sumner,  20  Pick.  (Mass.)  399;  Goss 
assignees  is  not  a  conversion  of  it.  v.  Emerson,  23  N.  H.  38;  Bailey  v. 
The  failure  of  the  pledgee  to  appear  Colby,  34  N.  H.  29;  Belden  v.  Per- 
and  prove  his  claim  in  the  bank-  kins,  78  111.  449;  Bradley  v.  Parks, 
ruptcy  court  forfeits  only  his  right  83  III.  169.  As  to  negotiable  in- 
to participate  in  the  distribution  of  struments:  Duncomb  v.  N.  Y.  etc. 
the  bankrupt's  estate  ordered  by  R.  Co.,  84  N.  Y.  190;  Lewis  v.  Mott, 
that  court."  36   N.   Y.   395;    White  Mts.   etc.  R. 

■iWliitney  v.    Peay,   24    Ark.    22;  Co.  v.  Bay  State  Iron  Co.,  50  N.  H. 

Johnston  v.  Smith,  11  Humph.  (Tenn.)  57;  Merchants'  Bank  v.  State  Bank, 

390;  BuUard    v.   Billings,  2  Vt.  309;  10  Wall.  (U.  S.)  604.     It  is  not  neces- 

Chapman  v.  Brooks  et  al.,  31  N.  Y.  sary  to  obtain  the  consent  of  the 

75.     "  A  pledgee  may  assign  tlie  prin-  pledgor.    Curtis  v.  Leavitt,  15  N.  Y.  9. 
cipal  debt  to  a  third  person,  and  give 

245 


§  287.]  PLEDGE    OB   PAWN.  [PAET    II. 

valid  pledge,  and  to  lose  the  possession  might  result  in  the 
loss  of  the  security;  for  in  such  case  the  pledged  property 
might  become  liable  to  levy  and  sale  upon  execution  for  the 
debts  of  the  pledgor,  or,  if  sold  to  a  honafide  purchaser,  be- 
come lost  as  security  for  the  debt.  "While  this  is  true,  the 
security  will  be  protected  if  the  possession  and  indebtedness 
are  held  by  the  same  person.  So,  the  pledgee  may  assign  the 
debt  or  obligation  and  with  it  the  security,  and  the  assignee 
would  acquire  all  the  rights  and  privileges  of  the  pledgee; 
would  be  entitled  to  the  possession  of  the  pledged  property, 
and  be  fully  protected  in  that  right  even  as  against  the  pledgor 
or  his  assignor.  In  Falkner  v.  Hill^  it  was  .held  that  a  pledgee 
might  release  a  portion  of  the  goods  to  the  pledgor;  or,  with 
his  consent,  to  his  assignee,  and  not  affect  the  lien  of  the 
pledgee  upon  the  remainder  of  the  property,  or  his  right  of  ac- 
tion against  the  debtor  upon  the  personal  obligation. 

§  287.  Assignment  of  secured  debt  passes  equitable  inter- 
est in  pledged  property. —  The  assignee  of  the  debt  secured 
by  the  pledged  propert}'^  stands  somewhat  in  the  same  relation 
as  the  assignee  of  the  mortgage  indebtedness  to  the  mortgage 
security ;  he  has  an  equitable  interest  in  the  pledge  and  the 
pledged  property,  which  under  certain  circumstances  may  be 
enforced.  The  pledgee's  interest  in  the  property  exists  only 
because  of  the  indebtedness;  the  debt  and  the  special  prop- 
erty in  the  security  cannot  be  separated.  When  the  pledgee 
ceases  to  own  the  debt  the  special  property  and  all  the  prop- 
erty he  has  in  the  pledge  ceases,  and  he  has  no  legal  or  equi- 
table interest  in  it.  If,  with  the  assignment  of  the  debt,  the 
j)ledgee  passes  the  pledged  property  to  his  assignee,  then  the 
assignee  has  a  legal  interest  in  it,  and  his  relations  to  it  are 
the  same  as  that  of  the  pledgee;  but  if  the  pledgee  does  not  de- 
liver to  him  the  possession  of  the  pledged  property,  the  assignee 
has  an  equitable  interest  in  it  and  may  enforce  it,  unless  it 
be  negotiable  paper  which  has  been  transferred  to  a  l)07ia  fide 
holder,  or  such  a  transfer  is  not  contemplated  by  the  contract 
of  pledge.  The  supreme  court  of  Connecticut,  in  Homer  v. 
Savings  Banh,  after  fully  discussing  the  question,  and  the 
American  and  English  cases  bearing  upon  it,  say:  "The  prin- 
ciple to  be  extracted  from  the  cases  is  this:  That  when  col- 

1 104  Mass.  188. 
246 


CH.  IV.]  pledgor's  eights  and  liabilities.  [§  288. 

lateral  security  is  given  or  property  assigned  for  the  better 
protection  or  payment  of  a  debt,  it  shall  be  made  effectual  for 
that  purpose,  and  that  not  only  to  the  immediate  parties  to 
the  securit}^  but  to  others  who  ar^  entitled  to  the  debt;  and  to 
make  them  thus  effectual  a  court  of  chancery  will  lend  its  aid, 
and  the  reason  is  that  this  is  the  intent  of  the  transaction."  ^ 

The  courts  holding  to  this  doctrine  proceed  upon  {he 
theory  that  the  pledgee  holds  the  property  pledged  simply  and 
alone  as  security  for  the  payment  of  the  debt,  and  that  it  is 
the  intention  of  the  original  parties  that  the  property  should 
be  subjected  to  the  payment  of  the  debt  if  tke  pledgor  should 
fail  to  discharge  the  obligation.  That  while  the  legal  title  to 
the  property  remains  in  the  pledgor,  it  is  a  naked  title;  the 
equitable  and  beneficial  interest  being  to  the  extent  of  the  se- 
curity for  the  debt  in  the  pledgee.  So  it  has  been  held  that 
upon  assignment  of  the  debt  the  security  being  created  for  the 
payment  of  the  debt  is  a  trust  existing  for  that  specific  pur- 
pose which  equity  will  enforce.- 

§  288.  Rights  of  assignee  subject  to  the  contract  of  pledge. 
The  original  contract  of  pledge  cannot  be  superseded  by  any 
subsequent  action  on  the  part  of  the  pledgee  without  the  con- 
sent of  the  pledgor.  If  it  was  clearly  the  intention  of  the 
parties  that  the  pledged  property  should  remain  in  the  hands 
of  the  pledgee  and  should  not  be  assigned  to  another,  that  con- 
tract would  be  respected  and  enforced,  and  in  such  case  the 
pledged  property  would  be  held  by  the  pledgee.  Such  inten- 
tion may  be  gathered  from  the  language  of  the  contract,  or 
may  be  implied.  Ordinarily  there  is  no  such  implication  in 
law,  but  it  has  been  suggested  that  such  an  implication  would 
arise  from  the  nature  of  the  thing  pledged,  as  in  the  case  of  a 
valuable  work  of  art  which  it  is  to  be  supposed  the  pledgor 

'  7  Conn.  478.  the  assignee  of  the  pledge  could  not 

-'Stearns  v.   Bates,  46  Conn.  306;  maintain  an  action  or  enforce  a  lien 

Estey  &  Green  v.  Graham,  46  N.  H.  unless  he  could  show  that  he  also 

169;  Jones  on  Pledges,  sec.  419.     In  owned    the    debt    secured    by    the 

Van  Eman  v.  Stanchfield,  13  Minn,  pledge.      In  Ponce   v.   McElvey,  47 

7."),  it  was  held  that  the  pledgee  can-  Cal.    154,  it   was   held   t'imt   the   as- 

not  separate  his  special  property  in  signee  of  the  principal  debt  and  col- 

the   pledge  from   the   debt   secured  lateral  security  holds  the  latter  upon 

by  it  so  that  tlie  debt  shall  1)6  owned  the   same   terms   tliat   the    original 

by  one  person  and  the  pledge  by  an-  pledgee  lield  it.     Alexander,  etc.  R. 

other.     It  was  therefore  held  that  Co.  v.  Burke,  23  Grat.  (Va.)  254. 

247 


§§  2S9,  290.]  PLEDGE    OE    PAWN.  [PART    II. 

would  not  desire  to  give  over  into  the  care  of  strangers.*  It 
may,  howev^er,  be  further  observed  that  if  the  contract  of 
pledge  does  not  provide  that  the  pledged  property  shall  be 
turned  back  to  the  pledgor  in  case  of  the  assignment  of  the 
debt,  or  in  some  other  way  clearly  show  that  it  is  the  inten- 
tion of  the  parties,  in  case  of  such  an  assignment,  to  release  the 
property  from  the  lien  of  the  pledge,  that  it  could  be  held  in 
the  hands  of  the  pledgee  still  subject  to  the  pledge,  and  in  case 
of  default  be  subjected  to  the  discharge  of  the  secured  debt. 

§  289.  May  repledge. —  As  we  have  seen,  the  pledgee  has  a 
property  in  the  pledge  to  the  extent  of  his  security;  it  there- 
fore follows  that  to  the  extent  of  this  property  interest  he  may 
repledge  it  to  secure  his  own  obligation,  but  he  cannot  pledge 
beyond  the  interest  which  he  has.  This  repledging  of  the 
property,  however,  must  always  be  subject  to  all  the  restric- 
tions of  the  original  pledge,  and  to  disregard  these  restrictions 
and  the  original  pledged  contract,  or  to  repledge  the  property 
claiming  to  be  the  owner  thereof,  would  be  a  fraud  upon  the 
original  pledgor  as  well  as  upon  his  pledgee,  and  might  be 
held  to  be  a  conversion.'- 

§  290.  Right  to  use  tlie  pledged  property. —  The  general 
rule  is  that  the  pledgee  has  no  right  to  use  the  pledged  prop- 
erty except  by  permission  of  the  pledgor,  or  by  the  agreement 
which  creates  the  pledge.*    Exceptions  to  this  general  rule, 

1  Thesuggestion  of  the  text  is  borne  a  mere  factor,  it  has  been  decided 
out  in  the  opinion  by  Cockburn,  J.,  that  in  case  of  a  strict  pledge,  if  the 
in  Donald  v.  Suckling,  L.  R,  1  Q.  B.  pledgee  transfers  the  same  to  his  own 
585.  creditor,   the    latter  may   hold   the 

2  In  Jarvis  v.  Rogers,  15  Mass.  389,  pledge  until  the  debt  of  the  original 
the  court  say:  "From  these  casefe  it  owner  is  discharged."  This  doctrine 
appears  that  the  pawnee  may  deliver  is  affirmed  in  Belden  v.  Perkins,  78 
the  goods  to  a  stranger  without  con-  111.  449. 

sideration,  or  he  may  sell  and  assign         3  sterns  v.  Marsh,  4  Den.  227;  Mc- 

all  his  interest  absolutely,  or  assign  Arthur  v.  Howett,  72  111.  358;  Story 

itconditionallyby wayof paw^n.with-  on  Bailments,  sees.  99-329.     "Where 

out   in    either    case    destroying  the  property  is  pledged  the  pledgee  may, 

original  lien,  or  giving  the  owner  a  witli  the  assent  of  the  pledgor,  use  it 

right  to  reclaim  them  on  any  other  in  any  way  consistent  with  the  gen- 

or  better  terms  than  he  could  have  eral    ownership    and    the    ultimate 

done  before  such  delivery  or  assign-  rights  of  the  pledgor."    Lawrence  v. 

ment."     In  Story  on  Bailments,  sec.  Maxwell,  53  N.  Y.  19.  But  should  any 

337,  it  is  said:  "But  wdiatever  doubt  damage  arise  by  reason  of  such  u.'^c; 

may  be  indulged  in  as  to  the  case  of  the  pledgee  would  be  answeraole. 

34B 


CH.  IV.]  pledgor's  rights  and  liabilities.  [§  291. 

however,  are  numerous,  principally  growing  out  of  the  obliga- 
tion of  the  pledgee  to  exercise  reasonable  care  and  prudence 
in  caring  for  the  property;  for  there  are  many  kinds  of  prop- 
erty the  subject  of  the  pledge  that  ordinary  care  would  require 
to  be  used.  Examples  of  this  kind  have  already  been  given, 
both  where  property  is  corporeal  and  incorporeal.^  The  use, 
however,  must  be  a  proper  use,  and  consistent  with  the  ordinary 
care  required,  having  in  contemplation  the  object  of  the  pledge 
and  the  property  pledged.  As,  for  example,  a  carriage  horse 
Avould  require  exercise  in  order  to  give  him  proper  care,  and 
the  pledgee  would  be  entirely  excusable  for  driving  the  animal 
to  a  carriage  for  this  purpose;  but  to  put  him  into  a  plow  team 
would  be  an  illegal  use  of  the  pledged  property  for  Avhich  the 
pledgee  might  be  subjected  to  damage.  And  where  coupon 
bonds  are  pledged  it  is  the  duty  of  the  pledgee  to  cut  the  cou- 
pon at  the  proper  time  and  collect  the  interest  or  dividends 
and  account  for  the  proceeds;  if  a  mortgage  or  note,  to  collect 
the  interest  or  the  principal  when  due;  if  stocks,  to  protect 
them,  and  even,  if  necessary  to  their  protection,  to  vote  them  at 
the  meeting  of  the  stockholders.  But  ordinarily  the  pledgee 
could  not  vote  the  stock  as  the  owner  of  it,  and  if  he  does  so 
vote  without  any  legal  consent  for  so  doing,  the  act  might  be 
deemed  to  be  an  act  of  conversion  of  the  pledge  and  the  pledgor 
could  restrain  the  pledgee  from  so  doing.^ 

§291.  Expenses  and  profits. —  The  right  of  the  pledgee  to 
make  expenditures  and  to  collect  profits  upon  the  pledged 
property  is  based  upon  the  rule  governing  the  rights  and  lia- 
bilities of  the  bailee,  occasioned  by  reason  of  the  bailment 
being  a  mutual-benefit  bailment  requiring  ordinary  diligence, 
which  is  that  degree  of  care  that  an  ordinarily  prudent  man 
would  usuall3''  bestow  upon  property  of  a  like  nature  under 
just  such  circumstances.  Unusual  expenses  or  improvements 
would  not  be  allowed,  but  it  is  incumbent  upon  the  bailee  to 

1  Thompson  v.  Patrick,  4  Watts  vote  upon  it  as  owner;  and  at  all 
(Pa.),  414;  Story  on  Bailments,  sec.  events  he  ought  not,  where,  under 
329;  Lawrence  v.  Maxwell,  53  N.  Y.  the  mode  of  acquiring  transfer,  he  so 
19.  escaped  the  liability  of  a  stockholder; 

2  McDaniels  v.  Flour  Mfg.  Co.,  22  but  tlie  fact  that  tlie  pledgee  so  votes 
Vt.  274;  Schouler's  Bailments  and  does  not  amount  to  conversion  of  the 
Carriers,  sec.  216.  "The  pledgee  of  pledge."  Heath  v.  Silverthorn  Co., 39 
the  stock  has  apparently  no  right  to  Wis.  147. 

249 


§  291;]  PLEDGE    OK   PAWN.  [PAET   II. 

do  whatever  is  necessary  in  order  to  keep  the  property  in  such 
a  condition  that  it  will  be  reasonably  available  for  the  pur- 
poses of  the  pledge,  being  at  all  times  limited  to  expenses 
which  are  usual  and  necessar3\  The  pledgee,  while  bound  to 
make  useful  and  necessary  repairs,  however,  cannot  make  new, 
expensive  and  unusual  improvements,  or  such  as  materially 
change  the  bailed  property  or  the  .use  of  it.  If  he  does  no 
more  than  to  incur  usual  and  ordinary  expenses,  however,  he 
can  recover  his  outlay  to  the  extent  of  the  increased  value.^ 
In  Fagan  v.  Thompson^  the  pledgee  of  a  steamer,  who  had  ad- 
vanced large  sums  of  money  from  time  to  time  to  aid  in  run- 
ning it,  and  who  assumed  and  paid  debts  and  expenses  that  had 
accumulated  for  repairs  and  insurance,  Avas  allowed  by  the 
court  an  additional  lien  upon  the  property  for  such  advance- 
ments and  expenses.  So  the  pledgee  of  an  insurance  policy, 
who  was  compelled  to  pay  premiums  upon  it  by  way  of  keep- 
ing the  policy  alive,  was  allowed  to  recover  the  amount  paid 
in  addition  to  the  indebtedness  for  which  it  was  pledged.''  In 
Sill  V.  Smith  *  it  was  held  "  that  a  trustee  who  is  a  pledgee  of 
personal  chattels  is  entitled  to  a  fair  compensation  for  all  rea- 
sonable expenses  attending  the  keeping  of  them,  and  has  a 
lien  therefor  upon  the  property  pledged  as  against  the  pledgee 
and  the  plaintiff.  Such  trustee,  upon  the  sale  of  the  chattels 
pledged  to  him  by  a  receiver  under  the  direction  of  the  court, 
is  entitled,  both  as  against  the  principal  defendant  and  the 
plaintiff,  to  so  much  of  the  avails  of  such  sale  as  will  satisfy 
not  only  the  original  debt  for  which  thfe  chattels  were  pledged, 
but  also  the  reasonable  expenses  incurred  in  the  keeping  of  the 
same."  The  rule  as  to  the  amount  of  expenses  that  may  be 
incurred  by  the  pledgee  and  recovered  for  seems  to  be  that 
the  expenses  must  be  reasonable  and  such  as  would  be  incurred 

1  Hendricks  v.  Robinson,  2  Johns,  whatever  expenses  are  necessarily 
Ch,  283.  incurred  by   him    in    asserting   his 

2  38  Fed.  467.  title,  or  in  rendering  it  available,  are 

3  Rowan  v.  State  Bank,  45  Vt.  160.  a  fair  charge  upon  the  property,  and 

4  28  N.  H.  369;  Starrett  v.  Barber,  the  balance  only  is  to  be  applied  to 
20  Me.  457.  "  Where  property  is  put  the  payment  of  what  is  due."'  Ray 
in  the  hands  of  the  payee  of  the  note  v.  Ross,  59  Ga.  62,  where  a  pledgor 
by  the  principal  promisor  as  coUat-  was  allowed  to  recover  for  premiums 
eral  security  therefor,  it  is  received  paid  by  him  upon  an  insurance  pol- 
by  him  under  an  imj^lied  obligation  icy  to  keep  it  alive. 

to    account  for  the    proceeds;   and 

250 


A 


CH.  IV.]  plepgojr's  rights  and  liabilities.  [§  291. 

along  the  line  of  the  pledgee's  duty,  and  if  they  go  beyond 
that  it  cannot  be  recovered;  and  his  duty  may  be  said  to  be 
to  keep  and  preserve  the  property,  protect  the  title  and  make 
the  security  available.  So  he  would  be  warranted  in  paying 
assessments  upon  stock  that  are  legally  made  and  premiums 
upon  insurance  policies  that  must  necessarily  be  paid  in  order 
to  keep  the  policy  in  force.  The  same  degree  of  diligence 
would  make  it  incumbent  upon  the  pledgee  to  collect,  care 
for  and  account  for  all  profits  and  increase  arising  from  the 
pledged  property;  and  should  he  fail  to  exercise  ordinary 
diligence  in  this  regard,  to  the  damage  of  the  pledgor,  he 
would  be  liable  for  whatever  damages  resulted  from  want  of 
such  care;  for  the  pledgee  is  not  only  called  upon  to  exercise 
ordinary  diligence,  but  he  is  liable  to  the  pledgor  for  ordinary 
negligence. 

If  profits  accrue  in  the  hands  of  the  pledgee,  he  is  entitled 
to  hold  them,  and,  if  of  such  a  nature  that  they  can  be  so 
applied,  to  apply  the  same  toward  the  payment  of  the  debt; 
or  in  case  the  debt  or  obligation  is  discharged,  to  restore 
such  profits  and  all  increase,  together  with  the  pledged  prop- 
erty, to  the  pledgor.^  It  may  also  be  said  that  it  is  the  duty 
of  the  pledgee  to  make  the  pledged  property  profitable  if  he 
can  do  so;  and  where  expenses  accrue  in  that  respect  he  would 
be  entitled  to  deduct  them  from  whatever  profits  were  real- 
ized, being  under  obligation  at  all  times  to  account  to  the 
pledgor  for  whatever  transactions  he  may  have  had  in  con- 
nection with  the  pledged  property.  It  may  be  said  that  the 
rule  resolves  itself  into  this:  The  pledgor  is  entitled  to  all  the 
profits  of  the  bailment  and  is  liable  for  all  the  necessary  ex- 
penses while  in  the  hands  of  the  bailee.  If  the  property  con- 
sists of  stocks  or  valuable   securities  paying    dividends  and 

1  In  Hunsaker  v.  Sturgis,  29  Cal.  gagee  to  recover  money  received  by 

142.  it  was  held:  "Where  tlie  relation  him  for  return  premiums  at  the  ex- 

of  pledgor  and  pledgee  exists,  if  the  piration  of  the  policies,  and  that  it 

debt  is  paid,  it  is  tlie  duty  of  the  was  immaterial  that  the  policies  had 

pledgee  to  account  for  and  pay  over  become  void  by  the  alienation  of  the 

all  the  jncome,  profits  and   advan-  insured  property  without  the  con- 

tages  derived  from  the  bailment."  sent  of  the  company."  Androscoggin 

In  Merrifield  v.  Baker,  9  Allen,  29,  it  R.  Co.  v.  Auburn   Bank,  48  Me.  335; 

was  held  that  the  mortgagor  could  Hager  v.  Union  Nat.  Bank,  63  Me. 

maintain  an  action  against  the  mort-  509. 

251 


§§  292,   293.]  PLEDGE    OK    PAWN.  [PART    II. 

profits,  the  pledgee,  must  account  for  them;  if  of  personal 
property  yielding  profits  or  increase,  as  a  herd  of  milch  cows, 
a  flock  of  sheep,  or  such  like  property,  the  pledgee  must  ac- 
count for  the  same  to  the  pledgor,  while  he  will  be  entitled  to 
all  expenses  necessarily  incurred  in  caring  for  the  pledge,  and 
in  some  cases  a  fair  compensation  as  pledgee  for  special  serv- 
ices, if  the  property  requires  it,  by  way  of  care  and  custody. 

§  292.  Liability  for  loss  and  damage. —  The  pledgee  is  re- 
quired to  exercise  ordinary  diligence  and  is  liable  for  ordi- 
nary negligence,  so  any  loss  that  is  the  result  of  the  ordinary 
negligence  of  the  bailee  while  the  property  is  in  his  custody 
and  under  his  control  would  render  him  liable  to  the  bailor  or 
owner.  "  If  perishable  goods  are  pledged,  the  pledgee  is  bound 
to  use  ordinary  care  to  preserve  them ;  but  if  they  perish  nat- 
urally, the  loss  would  fall  on  the  pledgor."  ^  If  the  property 
is  lost  by  theft,  the  mere  fact  that  it  has  been  stolen  es- 
tablishes no  liability;  but  if  it  should  appear  that  because 
of  the  negligence  of  the  bailee  the  property  was  so  lost,  the 
bailee  w^ould  then  be  held  liable.-  The  burden  of  proof  in 
such  cases  is  upon  the  pledgor,  as  it  is  he  that  alleges  the 
negligence,  and  it  is  also  incumbent  upon  him  to  show  the  dam- 
age occasioned  by  reason  of  such  negligence.' 

§  293.  Payment  of  debt  releases  pledged  property. —  The 
payment  of  the  debt  or  the  performance  of  the  obligation  of 
which  the  property  is  pledged  releases  the  property  from  the 
lien  of  the  pledge,  and  the  pledgor  is  entitled  to  the  possession 
of  it  at  once.  The  pledgee  cannot  retain  the  pledged  prop- 
erty as  security  for  the  payment  of  other  debts  than  that  for 
Avhich  it  was  pledged  unless  there  be  an  agreement  with  the 
parties  that  it  shall  be  so  held.*  The  debt  need  not  necessarily 
be  paid  m  money;  payment  may  be  made  as  well  by  delivery 
and  acceptance  of  personal  propert\^;  anything  that  effects  a 
satisfaction  of  the  debt  is  a  pa3anent.-^  The  whole  debt,  includ- 
ing principal  and  interest,  however,  must  be  paid  in  order  to 

1  Thompson  v.  Dill,  30  Ala.  444  SMurphey  v.   Partsch  (Idaho),   23 

2  Story    on     Bailments,    sec.    338;     Pac.  82. 

Jenkins  V.  National  Bank.  58  Me.  570;  *  Biebinger  v.  Continental  Bank, 
Winthrop  Sav.  Bank  v.  Jackson,  67  99  U.  S.  143:  Armstrong  v.  McLean, 
Me.  570;  Petty  v.  Overall,  42  Ala.  145.     153  N.  Y.  490. 

5  Strong  V.  Worden,  6  Vt.  563. 
253 


CB.  IV.]  pledgor's  rights  and  liabilities.  [§  294. 

discharge  the  lien,  and  until  the  whole  debt  is  paid  the  pledgee 
is  entitled  to  retain  the  property.  A  mere  renewal  of  the  note 
which  evidences  the  indebtedness  is  not  a  payment  of  the  debt, 
and  unless  it  is  stipulated  to  have  that  effect  it  will  not  dis- 
charge the  lien  of  the  pledge.^  It  goes  without  saying  that  the 
pledgor  is  entitled  to  credit  for  all  the  profits  that  have  accrued 
to  the  pledgee  by  reason  of  the  pledge  by  way  of  increase  or 
money  received  on  account  of  the  use  of  the  property,  and  it 
is  the  duty  of  the  pledgee  to  render  a  just  and  true  account  of 
the  same  and  apply  it  upon  the  indebtedness  of  the  pledgor. 

§  294.  A  tender  of  the  amount  due  will  discharge  the  lieu 
of  the  pledge, —  A  tender  of  the  amount  due  for  principal  and 
interest,  together  with  any  expenses  which  the  pledgee  is  le- 
gally entitled  to,  will  discharge  the  lien  of  the  pledge.^  It  is 
necessary,  however,  that  the  full  amount  should  be  tendered  to 
the  pledgee,  and  in  making  this  tender  the  usual  and  ordinary 
rules  applicable  to  tender  apply;  that  is  to  say,  it  would  not  be 
necessary  for  the  pledgee  to  actually  produce  the  amount  of 
money  if  the  circumstances  were  such  as  to  preclude  the  neces- 
sity of  such  a  production  of  the  money;  as,  for  example,  if  the 
pledgee  stated  that  there  would  be  no  use  of  producing  the 
money  because  he  would  not  accept  it;  nor  would  it  be  neces- 
sary to  make  a  tender  of  legal  tender  if  there  was  no  objection 
upon  the  part  of  the  pledgee  to  the  money  actually  produced 
and  tendered  iov  the  reason  that  it  was  not  a  legal  tender. 
And  it  has  been  held  that  where  a  tender  is  made  to  a  pledgee 
who  makes  no  objection  to  the  amount,  but  does  not  sur- 
render the  pledge  or  accept  the  tender,  the  lien  is  extinguished, 
and  his  possession  becomes  a  wrongful  conversion,  even  though 
the  tender  is  in  fact  less  than  the  amount  due  the  pledgee.  The 
tender,  however,  must  not  be  made  upon  any  condition  except 

1  Moses  V.  Trice,  21  Gratt.  (Va.)  556;  lateral  security  for  the   balance  of 

Kinney  v.  Kempton,  46  Vt.  80;  Day-  the  debt  embraced  in  the  new  note, 

ton  Nat.  Bank   v.  Merchants'    Nat.  in  the  absence  of  any  agreement  to 

Bank,  37  Ohio  St.  208.     In  Thorn  v.  the  contrary." 

Bank,  37  Ohio  St.  254,  it  was  held:  '-It  was  lield  in  Tomboy  Gold  Mine 

"Where  part  of  a  promissory  note  is  Co.v. Green,  11  Colo. App. 447,  "that an 

paid,  and  a  note  in  renewal  is  exe-  unconditional  tender  of  the  amount 

cuted  for  the  balance,  a  pledge  given  for   which   stock   is  pledged   termi- 

as  collateral  security  when  the  first  nated  the  lien  of  the  pledgee  and  also 

note  was  executed  will  stand  as  col-  the  right  to  retain  it." 

253 


§  294:.]  PLEDGE    OR    PAWN.  [PAET    II. 

that  the  property  that  has  been  pledged  should  be  returned 
to  him,  and  it  should  at  all  times  be  kept  good,  that  is  to  say, 
in  such  a  way  that  it  can  at  any  time  be  produced  and  brought 
into  court.^ 

A  tender  legally  made  of  the  amount  is  equivalent,  so  far  as 
effecting  discharge  of  the  property,  to  a  payment  of  the  debt, 
and  it  re-invests  the  title  to  the  thing  pledged  in  the  pledgor 
so  that  he  can  maintain  trover  or  replevin  for  it.^ 

1  Brooklyn  Bank  v.  De  Grauw,  23  pledge  held  as    collateral  security, 

Wend.  M2.  and  it  is  an  immediate  conversion  for 

-  Coggs  V.  Bernard,  3  Ld.  Raymond,  him  to  refuse  the  tender  and  retain 

909;  Ball  v.  Stanley,  5  Yerg.  (Tenn.)  the  pledge  on  a  claim  of  title   based 

199.     "Tender  of  the  debt  on  the  day  upon  an  alleged  forfeiture  for  delay 

it  becomes  due  terminates  the  cred-  to  make  payment."  McCally  v.  Clark, 

itor's  right  to  retain  possession  of  the  55  Ga.  53. 

254 


CHAPTER  Y. 


THE  RIGHTS  AND  OBLIGATIONS  OF  THE  PLEDGOR  AND 
PLEDGEE  AFTER  DEFAULT. 


§  395.  The  subject  and  its  discussion. 
Section  I. 

296.  The  pledgee's  remedies. 

297.  The  pledge  security  not  lost 

by  suit  and  judgment  on 
the  debt. 

298.  Discharge  of  lien  by  tender  is 

not  discharge  of  debt. 

299.  The     pledgee      may     attach 

pledged  property  or  levy  his 
execution  upon  it,  but 
waives  the  lien  of  the 
pledge. 

300.  Defense  of  the  pledgor  to  ac- 

tion of  pledgee  upon  the 
debt  secured. 

301.  Foreclosure  of  the  pledge  of 

corporal  property. 

302.  By  sale  under  the  power  con- 

tained in  the  contract  of 
pledge. 

303.  The  sale,  unless  otherwise  a!^ 

lowed  by  contract,  must  be 
public. 

304.  The  notice  of  sale. 

305.  The  pledgee    cannot  be  pur- 

chaser at  the  sale. 

306.  The    utmost   good   faitli    de- 

manded in  the  matter  of 
the  notice  of  sale. 

307.  Pledgor      cannot      compel 

pledgee  to  sell  within  a 
specified  tima 

308.  Surplus  in  the  hands  of  the 

pledgee  —  Proceeds  of  the 
sale. 

309.  Foreclosure  by  statutory 

proceedings. 

310.  Foreclosure  in  equity. 

311.  The  notice  and  sale  by  virtue 

of  decree. 

255 


313.  When  the  pledgor  is  insolvent 

or  a  bankrupt. 
Section  IL 
318.  Rights,  remedies  and  liabili- 
ties of  the  pledgor  and 
pledgee  of  negotiable  instru- 
ments and  choses  in  action 
after  default. 

314.  The  English  rule. 

315.  Recourse  to  the  pledged  secu- 

rity. 

316.  The  pledgee's  diligence  in  col- 

lecting the  securities. 

317.  Pledgee  may  recover  m  an  ac- 

tion on  the  negotiable  secu- 
rities. 

318.  Compromise. 

Section  IIL 

319.  Rights    and    liabilities    of 

pledgee  of  stocks  and  bonds 
of  corporations  after  de- 
fault. 

330.  Stocks  held  by  brokers  pur- 

chased on  margins. 

331.  Custom,  usage  and  coui'se  of 

business. 
323.  Foreclosure     of    the     pledge 
where  stocks  are  held  on 
margins. 

Section  IV. 

333.  The  rights  and  liabilities  of 

the  pledgor  after  default. 

334.  The  pledgor  may  waive  irreg- 

ularity. 
325.  Redemption  in  equity. 

336.  Equity  in  some  cases  will  take 

jurisdiction. 

337.  Accounting  for  the   pledged 

property. 

338.  Termination  of  the  relation. 


§§  295,  296.]  PLEDGE    OR    PAWN.  [PAKT   II. 

§205.  The  subject  and  its  discussion. —  The  pledging  of 
the  property  is  to  secure  the  payment  of  the  debt  or  perform- 
ance of  the  obligation  when  due.  The  guarantee  is  not  only 
that  the  amount  due  upon  the  debt  will  be  paid  or  that  the 
obligation  will  be  performed,  but  it  is  that  the  amount  will  be 
paid  and  that  the  obligation  will  be  performed  at  the  time  it 
is  due.  It  therefore  follows  that  failure  to  pay  the  debt  or  per- 
form the  obligation  at  that  time  renders  the  pledgor  in  default 
and  gives  to  the  pledgee  the  right  to  look  to  the  pledge  to 
secure  the  debt  or  obligation. 

The  rights  and  obligations  of  the  pledgor  and  pledgee  after 
such  default  will  be  the  subject  of  discussion  in  this  chapter, 
and  in  considering  these  we  have  subdivided  the  subject  as 
follows : 

(1)  The  rights  and  liabilities  of  the  pledgor  and  pledgee  of 

corporeal  property  after  default. 

(2)  The  rights  and  liabilities  of  the  pledgee  of  negotiable 

instruments  after  default. 

(3)  The  rights  and  liabilities  of  the  pledgee  of  stocks  and 

bonds  of  corporations  after  default. 

(4)  The  rights  and  liabilities  of  the  pledgor  after  default. 

Section  L 

The  Rights  and  Liabilities  of  the  Pledgor  and  Pledgee  of 
Corporeal  Property  After  Default. 

§  296.  The  pledgee's  remedies. —  The  property  pledged 
stands  simply  as  security  for  the  payment  of  the  debt  or  per- 
formance of  the  obligation.  The  realization  of  the  debt  is  the 
all-important  matter,  and  the  holding  of  the  security  in  no 
way  confines  or  limits  the  realizing  of  the  amount  secured  to 
proceedings  against  the  pledged  property ;  the  pledgee  may  at 
his  option  foreclose  the  pledge  and  sell  the  property,  or  he 
may  sue  on  the  debt,  obtain  judgment,  and  collect  the  same  or 
any  part  of  it  by  levy  and  sale  of  other  property  of  the  debtor.^ 

1  Elder  v.  Eouse,  15  Wend.  218.  instrument,  the  creditor,  on  default 
"  Where  in  a  mortgage  of  property  a  of  payment,  may  bring  his  action, 
party  acknowledges  his  indebted-  and  is  not  bound  in  the  first  instance 
ness  to  another  in  a  sum  certain,  and  to  resort  for  satisfaction  to  the  prop- 
declares  that  for  the  purpose  of  se-  erty."  In  Beckwith  v.  Sibley,  11 
curing  the  payment  thereof  he  trans-  Pick.  (Mass.)  482.it  was  held  "that 
fers   the  property  specified  in   the  prima  facie  a  right  of  actioA  accrued 

256 


CH.  v.]  EIGHTS    AND    OBLIGATIONS    AFTER    DEFAULT.  [§  297. 

§  297.  The  pledge  security  not  lost  by  suit  and  judgment 
on  the  debt. —  The  property  is  pledged  as  security  for  the  pay- 
ment of  the  debt,  and  the  only  thing-  that  will  discharge  the 
pledged  property  from  the  lien  of  the  pledge  is  payment  or 
discharge  of  the  obligation;  as  the  obtaining  of  a  personal 
judgment  can  in  no  way  be  said  to  be  a  payment  or  discharge 
of  the  indebtedness  it  cannot  affect  the  pledge.  The  pledgee 
may  therefore  have  a  judgment  against  the  pledgor  and  at 
the  same  time  hold  the  pledge  as  security  for  the  debt,  unless 
there  is  some  contract  or  agreement  limiting  or  changing  this 
legal  right. 

In  Wallace  v.  Finnagan'^  the  supreme  court  of  Michigan 
say:  "A  person  holding  collateral  securit3Ms  not  bound,  unless 
he  choose,  to  resort  to  it  before  suing  upon  his  principal  claim. 
"When  that  claim  is  satisfied  he  may  be  compelled  to  release 
or  re-assign  the  collaterals,  but  his  right  to  sue  the  claim  itself 
is  an  absolute  one  and  not  in  any  way  affected  by  his  posses- 
sion of  the  securities,  and  he  cannot,  therefore,  be  compelled  ta 
surrender  them  as  a  condition  of  enforcino:  his  leo:al  demand." 
So  a  pledgee  is  not  bound  to  surrender  the  pledged  property 
before  he  can  proceed  to  sue  and  obtain  judgment  upon  the 
personal  obligation.-  Judgment  may  be  obtained,  execution 
or  attachment  against  other  property  may  be  levied,  and  it 

to  the  consignee  immediately  upon  special  equities  a  pledgee  of  personal 
his  making  the  advances  to  the  con-  property  will  not  be  required  to  ex- 
signor,  notwithstanding  he  had  a  haust  his  security  before  enforcing 
lien  upon  the  notes  as  security  for  his  personal  remedy  upon  the  debt.'' 
the  debt  due  him."  Whitaker  v.  Grand  Island  Sav.  &  Loan  Ass'n  v. 
Sumner,  20  Pick.  899.  "A  creditor  Moore,  40  Neb.  686;  De  Cordova  v. 
holding  collateral  security  may  nev-  Barnum,  9  N.  Y.  Sup.  237.  "  Where 
ertheless  bring  an  action  upon  his  collaterals  are  deposited  with  a 
demand  and  attach  property  of  the  broker  to  secure  the  result  of  a  sale 
debtor  to  satisfy  the  judgment."  and  purcliase  of  stock,  he  holds  the 
Whitwell  V.  Brigham,  19  Pick.  399.  collaterals  as  a  pledge,  and  is  not 
"  In  the  absence  of  a  statute,  or  stip-  bound,  in  the  absence  of  an  agree- 
ulation  to  the  contrary,  the  posses-  ment,  to  sell  or  return  them  before 
sion  of  the  pledged  property  does  not  bringing  suit  to  recover  the  loss  re- 
suspend  the  right  of  the  pledgee  suiting  from  the  transaction."  Ger- 
to  proceed  personally  against  the  mania  Sav.  Bank  v.  Peuser,  40  La. 
pledgor  for  his  debt  without  selling  790;  Barnes  v.  Bradley,  56  Ark.  105; 
the  goods."  Sonoma  Valley  Bank  v.  Pate  v.  Hoffman,  16  N.  Y.  Sup.  74. 
Hill,  59  Cal.  107.  2 "it  is  no  defense  to  a  suit  on  a 
1 14  Mich.  170.  "  In  the  absence  of  note  that  collateral  security  given 
17                                              257 


§  298.]  PLEDGE   OK   PAWN.  [PAKT    II. 

has  been  held  that  even  committing  the  debtor's  body  to  prison 
on  an  execution  for  debt,  where  such  a  proceeding  is  permit- 
ted, would  in  no  wise  lessen  or  impair  the  right  of  the  pledgor 
to  hold  the  pledged  property  as  security.  The  pledgee  may, 
after  obtaining  the  judgment,  levy  upon  and  sell  other  prop- 
erty, and  if  the  amount  realized  upon  such  sale  is  not  sufficient 
to  discharge  the  debt,  he  may  afterwards  sell  the  pledged 
property  which  he  holds  as  security  upon  foreclosure  of  the 
pledge  for  the  balance ;  or  he  may  foreclose  his  pledge  and 
bring  an  action  and  recover  a  judgment  for  any  deficiency  after 
sale  of  the  pledged  property,  and  proceed  to  collect  his  judg- 
ment for  deficiency  by  execution  and  sale  of  other  property.^ 
§  298.  Discharge  of  lieu  by  tender  is  not  discharge  of  debt. 
A  tender  of  the  amount  of  the  indebtedness  which  is  refused 
by  the  pledgee  may  operate  as  a  discharge  of  the  lien  of  the 
pledge  and  entitles  the  pledgor  to  release  and  return  of  the 
pledged  property.  Such  a  tender  and  release,  however,  will 
not  discharge  the  debt  or  obligation,  and  the  pledgee  may,  after 
the  lien  of  the  pledge  has  thus  been  released,  and  after  having 
been  deprived  of  the  property  which  he  held  as  security,  bring 
an  action  to  recover  the  debt  and  obtain  judgment  and  have 
execution  for  the  same,  and  levy  upon  and  sell  the  property  of 
the  pledgor  to  satisfy  the  demand.- 

has  not  been  returned  or  accounted  debt  is  not  discharged  by  the  tender, 

for."    Ambler  v.  Ames,  1  App.  D.  C.  but  the  pledgee  may  still  maintain 

191.  an  action  for  this.   Jones  on  Pledges, 

1  Smith  V.  Strout,  63  Me.  205;  So-  sec.  542.  At  common  law  a  tender 
noma  Valley  Bank  v.  Hill,  59  Cal,  of  the  debt  on  the  law  day  satisfies 
107:  Whitewill  v.  Brigham,  19  Pick,  the  condition  of  the  mortgage  and 
117;  Morse  v.  Woods,  5  N.  H.  299.  discharges  the  property  from  the  in- 
Where,  however,  after  the  suit  is  cumbrance  as  effectually  as  payment, 
commenced  the  pledgee  sold  the  but  the  debt  remains  and  may  be  re- 
pledged  property  held  as  security,  covered  by  action  at  law.  A  tender 
and  released  upon  the  sale  a  greater  of  the  debt  after  its  maturity  ex- 
amount  than  the  amount  of  the  debt  tinguishes  the  lien  on  personal  prop- 
upon  which  suit  was  brought,  it  was  erty  pledged  to  secure  its  payment: 
held  that  such  a  sale  would  abate  a  pledgor  may  recover  the  pledge  or 
the  suit;  that  it  was  equivalent  to  a  its  value  in  any  proper  form  of  ac- 
payment  pendente  lite.  Lomis  v.  tion  without  keeping  the  tender  good, 
Jewett,  51  Vt.  348.  or  bringing  the  money  into  court,  and 

2 "In  one  respect  a  tender  is  not  the  pledgee  may  have  his  action  for 

equivalent  to  payment:  for  although  the  debt.     A  debt  payable  in  money 

the  lien  is  discharged  by  either,  the  is  never  discharged  by  a  tender;  it  is 

258 


CH.  v.]  BIGHTS    AND    OBLIGATIONS    AFTER   DEFAULT.  [§  299. 

§  299.  The  pledgee  may  attach  pledged  property  or  levy 
his  execution  upon  it^  hut  waives  the  lien  of  the  pledge. — 

It  is  also  well  settled  that  the  pledgee,  or  his  assignee,  may  sue 
the  pledgor  on  his  personal  obligation  and  levy  an  executioa 
in  the  suit  upon  the  pledged  property.  He  may  commence  his 
suit  by  attaching  the  property  pledged,  or  may  attach  the  prop- 
erty during  the  pendency  of  the  suit;  but  it  seems  to  be  gen- 
erally held  that  if  the  plaintiff,  pledgee  or  assignee,  attaches  the 
pledged  property  which  he  holds  as  security,  or  levies  upon  it 
an  execution  sued  out  in  his  action  against  the  pledgor,  he 
waives  the  lien  of  pledge;  he  cannot  hold  the  property  by  virtue 
of  the  pledge  and  at  the  same  time  hold  it  by  attachment  or 
execution  levy.  By  the  levy  of  the  writs  or  either  of  them  he 
asserts  that  the  property  is  the  property  of  the  pledgor,  and 
that  possession  may  be  taken  of  it  under  the  writ  and  held  by 
the  sheriff  or  officer  levying  it  to  satisfy  the  judgment,  and  it 
would  seem  that  by  this  act  the  pledgee  would  be  estopped  from 
asserting  a  right  in  himself  to  hold  possession  of  the  property. 
The  claim  of  possession  by  the  pledgee  by  reason  of  the  pledge 
would  be  antagonistic  to  the  claim  of  the  officer  by  virtue  of 
the  levy  of  the  writ  which  the  pledgee  has  directed.^  The  su- 
preme court  of  Kansas,  in  Jones  v.  Scott,^  held  that  "where  prop- 
erty exempt  from  execution  has  been  pledged,  the  exemption 
is  waived,  and  the  property  may  be  sold  by  virtue  of  an  exe- 
cution issued  on  the  judgment  recovered  on  the  debt  secured." 
It  would  seem  that  the  reasoning  of  the  court  might  be 
questioned  in  this  case.  If  the  levying  of  an  execution  waives 
the  lien,  the  moment  the  lien  is  waived  the  property  right  that 
had  been  conveyed  to  the  pledgee  becomes  re-invested  in  the 
pledgor,  and  he  holds  it  as  he  holds  any  other  property  that  is 
exempt  from  execution.  No  agreement  or  contract  waiving 
exemption  from  execution  can  be  said  to  have  been  contem- 
plated at  the  time  of  entering  into  the  contract  of  pledge.  The 
))ledgor  reserved  the  right  to  redeem  the  prgperty,  the  right  to 

only  where  a  debt  is  payable  in  spe-  N.  J.  Law,  496;  Story  v.  Krewson,  55 

oific    articles   of  personal   property  Ind.  397;  Perre  v.  Castro,  14  Cal.  519; 

that  a  tender  operates  as  a  satisfac"  Hemmelmann  v.  Fitzpatrick,  50  Cal. 

tion  of  the   demand."    Mitchell  v.  650. 

Roberts,  17  Fed.  776;  Moynahan  v.  i  Legg  v.   Willard,   17  Pick.   140; 

Moore,  9  Mich.  9;  Potts  v.  Plaisted.  Buck  et  al.  v.  IngersoU,  11  Met.  226. 

30  Mich.  149;  Shields  v.  Loziet,  35  2  iq  Kan.  33. 

259 


§  300.]  PLEDGE    OR    PAWN.  [PAET    II, 

have  it  sold,  if  sold  at  all,  by  virtue  of  the  power  in  the  pledge, 
or  regularly  foreclosed  as  provided  bylaw,  w^hich  is  an  entirely 
different  procedure  than  that  by  execution,  levy  and  sale.  To 
hold  that  exempt  property  which  has  been  pledged  is  subject 
to  levy  and  sale  upon  an  execution  by  reason  of  its  having  been 
pledged  for  the  same  debt  would  be  permission  to  vary  the 
contract  by  which  the  pledge  is  created  without  the  consent  of 
the  party,  pledgor.  The  policy  of  the  law  is  to  exempt  certain 
property  from  execution.  It  is  a  statutory  privilege,  and  a 
contract  of  waiver  of  that  privilege  would  necessarily  be  sub- 
ject to  a  strict  construction.' 

§  300.  Defense  of  the  pledgor  to  action  of  pledgee  upon 
the  debt  secured. —  The  right  of  action  upon  the  debt  secured 
by  the  pledged  property  is  entirely  independent  of  and  distinct 
from  the  contract  of  pledge,  and  so  the  pledge  is  in  no  way 
affected  by  an  action  for  the  debt;  nor  can  the  pledgor  offset 
the  pledged  property  to  the  claim  of  the  pledgee  in  such  an 
action;'-  nor  could  he  recoup  damages  claimed  because  of  a 
depreciation  of  the  property  while  in  the  possession  of  the 
pledgee,  though  such  depreciation  occurred  after  the  debt  was 
due  and  at  a  time  when  the  pledged  property  could  have  been 
sold  for  the  debt.  This  is  true  even  though  the  pledgor  at 
such  time  requested  the  pledgee  to  sell  the  property.^ 

Conversion  of  the  property  by  the  pledgee  would  no  doubt 
raise  a  question  of  right  on  the  part  of  the  pledgor  by  way  of 
defense  to  an  action  upon  the  debt.  In  many  of  the  states  stat- 
utes have  been  passed  allowing  the  pledgor  the  right  of  set-off" 
in  such  cases;  but  if  there  was  no  statutory  right,  it  would 
seem  that,  if  the  amount  received  by  the  pledgee  by  reason  of 
such  conversion  was  fixed  and  liquidated,  it  would  be  allowed 
by  way  of  set-off;  and  if  the  pledging  of  the  property  was  con- 

1  Jones  on  Pledges,  sec.  599.  of  the  note:  but  the  pledgee  is  not 
2Bank;  v.  Jackson,  67  Me.  570.  bound  to  sell,  and  on  failure  to  do  so 
3  Kozet  V.  McClennan,  48  111.  345.  he  is  not  liable  for  tlie  loss  sustained 
"  Where  a  party  deposits  the  stock  of  by  depreciation  in  the  value  of  the 
an  incorporated  company  as  coUat-  stock  which  may  occur  after  tlie  de- 
eral  security  to  a  promissory  note,  fault.  The  pledgor  should  have  re- 
■R-ith  power  of  sale  to  the  pledgee  in  deemed  by  sale  of  the  stock,  or  other- 
case  of  payment  after  a  demand  and  wise  the  general  property  remains  in 
notice,  he  may  sell  the  stock  and  him  with  the  right  of  redemption."' 
apply  the  proceeds  to  the  discharge 

260 


CH.  v.]  EIGHTS    AND    OBLIGATIONS    AFTER   DEFAULT.  [§  301. 

nected  with  and  a  part  of  the  transaction  of  contracting  the 
debt,  then  in  such  case  recoupment  would  be  proper  and  allow- 
able by  way  of  defense  to  the  action  upon  the  debt  in  case  of 
conversion  of  the  property  by  the  pledgee.^ 

§  301.  The  foreclosure  of  the  pledge  of  corporeal  property. 
The  title  to  the  property  pledged  remains  in  the  pledgor  sub- 
ject to  the  right  of  possession  and  the  lien  of  the  pledgee. 
Failure  to  pay  the  debt  when  due  does  not  divest  the  pledgor  of 
the  title  or  give  to  the  pledgee  any  greater  title  than  he  be- 
fore had.  The  pledgee  may,  however,  when  default  has  been 
made  in  the  payment  of  the  debt  for  which  the  property  was 
pledged,  proceed  to  foreclose  his  pledge,  and  until  he  has  fore- 
closed the  pledge  he  cannot  deprive  the  pledgor  of  his  title. 
By  this  foreclosure  proceeding  he  has  recourse  to  the  prop- 
erty, and  through  it,  and  by  reason  of  it,  may  subject  it  to  the 
payment  of  the  debt  for  which  it  was  pledged;  the  pledg^^ 
however,  at  all  times  and  until  the  pledge  is  actually  foreclosed, 
has  a  right  to  redeem  the  property  from  the  lien  of  the  pledge, 
and  this  equity  of  redemption,  as  it  is  called,  is  a  right  and 
privilege  belonging  to  the  pledgee,  of  which  he  cannot  be  di- 
vested even  by  a  contract  or  agreement  made  at  the  time  of 
the  pledge;  but,  as  has  been  shown,  by  a  subsequent  contract 

•Sterns  v.  Marsh,  4  Denio,  227;  action  for  the  bond;  the  demand  filed 
Bank  V.  Marshall,  11  Fed.  19;  Bigelow  (founded  upon  the  same  claim  can- 
V.  Walker,  24  Vt.  149.  In  Wiuthrop  not  be  allowed."  Citing  Houghton 
Bank  v.  Jackson,  67  Me.  570,  the  ques-  v.  Houghton,  37  Mich.  72,  and  Robin- 
tion  arose  as  to  whether  or  not  in  a  son  v.  Stafford,  57  Me.  163.  Continu- 
suit  upon  the  debt  the  pledgor  could  ing,  the  court  say:  "  Nor  does  the  law 
set  off  the  bond  which  was  the  prop-  of  recoupment  apply.  To  make  that 
erty  pledged  to  secure  the  payment  available  it  must  appear  that  there 
of  the  debt.  The  court  say:  "What-  is  some  stipulation  in  the  contract 
ever  may  be  the  contract,  express  or  sued  on  which  the  plaintiff  has  vio- 
implied,  on  the  part  of  the  bank  grow-  lated."  A  defense  by  way  of  recoup- 
ing out  of  the  pledge  of  this  bond  ment  denies  the  validity  of  the 
under  the  facts  agreed,  there  can  be  plaintiff's  cause  of  action  to  as  large 
no  liability  on  tlie  part  of  the  bank  to  an  amount  as  the  plaintiffs  allege  he 
return  the  bond  until  the  note  has  is  entitled.  Waterman  on  Recoup- 
been  paid;  its  lien  must  continue  so  ments,  sees.  465,  466;  Harrington  v. 
long  as  the  note  remains  in  its  pos-  Stratton,  22  Pick.  510.  This  can  only 
session  unpaid.  There  is  no  pretense  be  when  the  liability  of  both  parties 
of  payment,  and  the  tender  made  arises  out  of  the  same  transaction,  or 
was  a  conditional  one  and  therefore  from  mutual  and  dependent  cove- 
of  no  effect.  Tlie  defendant  could  nants  of  agreement, 
not  under  existing  facts  maintain  an 

261 


§  302.]  PLEDGE    OR    PAWN.  [PAKT   II. 

for  a  valuable  consideration  he  might  dispose  of  his  equity  of 
redemption.^ 

Foreclosure  of  the  pledge  is  generally  effected  in  one  of 
three  ways: 

(1)  By  sale  under  the  power  contained  in  the  contract  of 
pledge. 

(2)  By  statutory  proceedings. 

(3)  By  bill  in  chancery  and  obtaining  a  decree  of  the  court 
for  the  sale  of  the  property. 

§  302.  (1)  By  sale  under  the  power  contained  in  the  con- 
tract of  pledge. —  If  the  pledged  contract  be  in  writing,  it  usu- 
ally contains  an  authorization  to  the  pledgee,  in  default  of 
paj^ment  of  the  debt  or  the  performance  of  the  obligation  at 
the  time  and  in  the  manner  provided  for  payment  and  per- 
formance, to  sell  the  pledged  property  either  at  public  or  pri- 
vate sale.  This  authorization  to  sell  the  property  is  called  the 
power  of  sale  in  the  contract.  This  power  to  sell,  however,  at 
pullic  sale,  even  though  it  is  not  contained  in  the  written  con- 
tract, or  in  case  there  is  no  written  contract,  but  a  mere  pledge 
of  the  property  for  the  payment  of  the  debt  or  the  perform- 
ance of  the  obligation,  is  implied  from  the  pledging  of  the 
property.  The  procedure  is  sometimes  called  "a  sale  at  com- 
mon law,"  or  "  a  common-law  foreclosure,"  and  the  right  to 
sell  extends  as  well  to  the  assignee  of  the  pledgee's  interest 
as  to  the  pledgee.^  There  are,  however,  exceptions  to  the  gen- 
eral rule,  as  in  case  of  pledge  of  commercial  paper  as  security 
for  a  loan  of  money.  In  the  absence  of  a  special  power  for 
that  purpose  the  pledgee  is  not  authorized,  upon  non-payment 
of  the  debt  and  upon  notice  to  the  pledgor,  to  sell  the  securities 
pledged  either  at  public  or  private  sale,  but  he  is  bound  to  hold 
and  collect  the  same  as  they  become  due  and  apply  the  money 
to  the  payment  of  the  loan.     This  because  the  proper  mode  of 

1  Coninghara's  Appeal,  57  Pa.  St.  pledgee  might  sell  on  default  of  the 
474;  Mitchell  v.  Roberts,  17  Fed.  776.  pledgor,  such  a  right  is  presumable 

2  Alexander  v.  Burke,  22  Grat.  (Va.)  from  the  nature  of  the  transaction." 
254;  Jerome  v.  McCarter,  94  U.  S.  734-  2  Story's  Eq.,  sec.  1008.  In  ordinary 
739.  The  court  say  with  reference  cases  no  special  agreement  is  neces- 
to  the  sale  of  the  pledged  property:  sary  to  confer  upon  the  pledgee 
"  They  passed  by  delivery,  and  even  power  to  sell  the  property  pledged, 
were  there  no  express  stipulation  in  The  power  is  ordinarily  incident  to 
the    contract     of    pledge    that   the  the  pledga 

263 


OH.  Y.]      EIGHTS    AND    OBLIGATIONS    AFTER   DEFAULT.       [§§  303,  304. 

making  such  a  security  available  would  be  by  collecting  the 
money  and  not  by  selling  the  security.^ 

§  303,  The  sale,  unless  otherwise  allowed  by  contract, 
ninst  be  public. —  "At  common  law  a  pledgee  cannot  sell 
without  judicial  process,  unless  reasonable  notice  be  given  to 
the  pledgor  to  redeem,  and  the  pledgor  is  entitled  to  such  rea- 
sonable notice  not  only  of  the  pledgee's  intention  to  sell,  but 
also  of  the  time  and  place  of  the  sale,  and  the  sale  should  be 
at  public  auction."  In  McDowell  v.  Chicago  Steel  Works  et  al.^- 
the  court  say:  "At  common  law,  where  property  is.  pledged 
to  secure  a  debt,  the  right  to  sell  for  default  in  payment  is  con- 
ferred by  the  law,  and  hence  the  sale  must  be  made  subject  to 
the  conditions  imposed  by  the  law  —  that  is  to  say,  after  making 
demand  and  giving  notice;  but  where  the  pledge  is  accompa- 
nied by  a  special  contract  as  to  sale  upon  non-payment  of  the 
debt,  the  right  to  sell  is  conferred  not  by  the  law,  but  by  the 
contract  itself,  and  hence  must  be  exercised  in  the  mode  speci- 
fied by  the  parties  in  their  agreement,  as  such  contract  embod- 
ies the  intention  of  the  parties;  its  silence  as  to  notice  justifies 
the  inference  that  the  power  to  sell  without  notice  wag  intended 
to  be  conferred." 

§  304.  The  notice  of  sale, —  The  pledgor,  the  owner  of  the 
property  pledged  for  the  payment  of  the  debt  or  the  perform- 
ance of  the  obligation,  is  specially  interested  in  having  the 

1  Wheeler  v.  Newbould,  16  N.  Y.  public  auction  the  chattel  pledged, 

392.     In  Sleeven   v.  Morrow,  4  Ind.  witliout  judicial  process  and  decree 

425;  Eoberts  v.  Thompson,  14  Ohio  of  foreclosure,   upon  giving  to  the 

St.  7,  and  Jennison  v.  Parker,  7  Mich,  debtor  reasonable  notice  to  redeem, 

335,  it  was  held  "  that  the  pledgee  is  although  the  old  rule  existing  in  the 

bound  to  use  reasonable  diligence  in  time  of  Glanville  required  a  judicial 

the  collection  of  negotiable   paper  sentence  to  warrant  a  sale  unless 

pledged  as  collateral  security."  there  was  a  special  agreement  to  the 

■n24Ill.  491;  Sell  v.  Ward,  81  111.  contrary.     This  right  to  sell  upon  de- 

App.  675;  National  Bank  of  111.   v.  fault  is  implied  in  the   contract  of 

Baker,  128   111.  533;   Story  on   Bail-  pledge  and   does  not  depend  upon 

ments,  sec.  310.     "The  sale  should  be  any  express  stipulation."    Jerome  v. 

at  public  auction."  Wheeler  v.  New-  McCarter,  94  U.  S.  734;  McDowell  v. 

bould,  16  N.  Y.  395;  Dykers  v.  Allen.  Chicago  Steel  Co.,  124  111.  491;  Mer- 

7  Hill,  497.     "  A  sale  at  the  broker's  chants'  Bank  v.  Thompson,  133  Mass, 

board  is  not  a  public  sale."    Brass  482;  Hancock  v.  Franklin  Ins.  Co., 

V.    Worth,    40   Barb.  648;   Jones  on  114  Mass.  156;  Ogden  v.  Lathrop,  65 

Pledges,  .sec.  603.     "It  is  a  well  set-  N.   Y.    158;    Canfield  v.   Minn.   etc. 

tied  rule  of  the  common  law  that  the  Ass'n  Co.,  14  Fed.  801,  15  Fed.  360. 
pledgee  upon  default  may   sell   at 

263 


§  304.]  PLEDGE    OR    PAWN.  [PART  II. 

pledged  property  bring  the  best  price  possible  at  the  sale, 
and  that  it  be  not  sacrificed,  for  the  reason  that  he  is  liable  for 
any  deficiency  and  is  entitled  to  any  surplus  that  may  arise  by 
the  sale  of  the  property ;  the  presumption  is  that  by  a  public 
sale  more  bidders  will  be  attracted  and  a  better  price  will  be 
realized.  The  pledgor  is  entitled  to  be  personally  notified  of 
the  time  and  place  of  the  sale,  unless  the  contract  provides 
that  a  sale  may  be  had  without  such  notice ;  and  if  by  the  con- 
tract it  is  stipulated  that  to  fix  the  pledgor's  liability  a  demand, 
must  be  made,  then  both  demand  and  notice  of  sale  must  be 
given  to  the  pledgor.^  The  time  of  the  sale  of  the  property, 
unless  fixed  by  the  contract,  is  uncertain,  depending  entirely 
upon  the  will  of  the  pledgee,  and  so  the  only  way  in  which 
the  pledgor  can  know  the  time  and  place  is  by  notice  from 
the  pledgee,  who  fixes  both.  The  pledgor  has  the  right  to  re- 
deem at  any  time  before  the  property  is  sold  upon  foreclosure, 
and  it  is  therefore  very  important  that  he  should  be  notified 
of  the  time  and  place  when  and  where  that  very  important 
privilege  is  to  be  cut  off;  and  so  it  is  said  that  the  pledgee  is 
bound  to  give  the  pledgor  personal  notice  of  the  time  and 
place  of  the  sale,  whether  the  debt  is  payable  on  a  fixed  day, 
and  whether  payable  immediately  or  at  some  future  time;'  and 

1 "  At  common  law,  when  property  sell  it,  he  must  sell  it  at  public  sale 

is  pledged  to  secure  a  debt,  the  right  and  after  notice  to  the  pledgor.     If 

to  sell  for  default  in  payment  is  con-  this  is  not  done  the  pledgor's  rights 

ferred  by  the  law,  and  hence  the  are    unaffected    by    the    sale."    In 

sale  must  be  made  subject  to  the  Stearns  v.  Marsh,  4  Denio,  227,  the 

conditions  imposed  by  the  law;  that  court  say:  "It  is  said  that  the  law 

is  to  say,  after  making  demand  and  makes  a  distinction  between  the  case 

giving    notice."    McDowell    v.  Chi-  of  a  pledge  for  the  debt  payable  im- 

cago  Steel  Works  et  al.,  124  111.  491.  mediately,  and  one  where  the  debt 

2Jeanes'  Appeal,  116  Pa.  St.  573.  does  not  become  payable  until  a  fu- 
The  court  say  (p.  582):  "In  the  view  ture  day:  and  that  in  the  latter  case 
that  we  take  of  the  present  case  the  creditor  is  not  bound  to  call  for 
there  is  but  one  question  that  re-  a  redemption  or  to  give  notice  of 
quires  consideration,  and  that  is  sale,  though  in  the  former  it  is  con- 
whether  the  pledgee  of  the  stock  ceded  that  there  must  be  such  de- 
had  the  lawful  right  to  sell  it  at  pri-  mand  and  that  notice  must  be  given, 
vate  sale  and  without  notice  to  the  Non-pajmient  of  the  debt  at  the  stip- 
pledgor  ?  In  an  ordinary  case  of  ulate±  time  did  not  work  a  forfeit- 
pledge,  of  course  there  is  no  such  ure  of  the  pledge,  either  by  the 
right.  The  pledgee  must  first  give  civil  or  at  the  common  law.  It 
notice  to  redeem,  and  if  the  pledge  simply  clothed  the  pledgee  with  au- 
is  not  redeemed  and  he  proposes  to  thority  to  sell  thQ  pledge  and  reim- 

264 


CH.  v.]  KIGHTS    AND    OBLIGATIONS    AFTER    DEFAULT.  [§  305. 

if  the  pledgor  cannot  be  found,  and  for  this  reason  he  cannot 
be  notified,  then  it  will  be  necessary  for  the  pledgee  to  resort 
to  judicial  proceedings  in  order  to  foreclose  the  pledge.* 
Formal  notice  of  the  time  and  place  of  sale  would  not  be  nec- 
essary if  the  pledgor  has  actual  notice.-  The  only  object  in 
giving  notice  being  that  he  may  be  informed  as  to  when  and 
where  the  sale  is  to  take  place,  to  require  the  pledgee  to  give 
actual  notice  when  the  pledgor  already  had  full  knowledge 
upon  that  subject  would  be  to  require  a  vain  thing. 

§  305.  The  pledgee  cannot  be  purchaser  at  the  sale. —  The 
relation  of  the  pledgee  and  the  pledgor  may  be  said  to  be 
fiduciar3^  The  pledgee  in  a  sense  holding  the  property  in 
trust  for  the  pledgor,  in  the  exercise  of  good  faith  is  bound  to 
obtain  upon  the  sale  all  that  the  property  is  reasonably  worth, 
and  in  carrying  on  the  foreclosure  sale  is  bound  to  exercise 
that  good  faith  which  is  always  required  where  like  relations 
exist.  It  may  therefore  be  said  to  be  a  general  rule  that  the 
pledgee  cannot  be  a  purchaser  at  his  own  sale.  It  has  been 
held,  however,  that  where  a  pledgee  makes  a  sale  under  and 
within  the  terms  of  the  pledge,  and  purchases  the  pledged 

burse  himself  for  his  debt,  interest  the  pledgor  is  equally  interested  to 
and  expenses;  and  the  residue  of  the  see  to  it  that  the  pledge  is  sold  for  a 
proceeds  of  the  sale  then  belonged  fair  price.  The  time  when  the  sale 
to  the  pledgor.  The  old  rule  exist-  maj^  take  place  is  as  uncertain  in 
ing  in  the  time  of  Glanville  re-  the  one  case  as  in  the  other;  both 
quired  a  judicial  sentence  to  war-  depend  upon  the  will  of  the  pledgee, 
rant  a  sale,  unless  there  was  a  spe-  after  the  lapse  of  the  term  of  credit 
cial  agreement  to  the  contrary.  But  in  the  one  case,  and  after  a  reason- 
as  the  law  now  is,  the  pledgee  may  able  time  in  the  other;  unless  indeed 
file  a  bill  in  chancery  for  a  fore-  the  pledgor  resorts  to  a  court  of 
closure  and  proceed  to  a  judicial  equity  to  quicken  a  sale.  Personal 
sale;  or  he  may  sell  without  judicial  notice  to  a  pledgor  to  redeem,  and 
process  upon  giving  reasonable  no-  of  the  intended  sale,  must  be  given 
tice  to  the  pledgor  to  redeem  and  of  as  well  in  the  one  case  as  in  the 
the  intended  sale.  I  find  no  author-  other,  in  order  to  authorize  a  sale  by 
ity  countenancing  the  distinction  the  act  of  the  party.  And  if  the 
contended  for;  but  on  the  contrary,  pledgor  cannot  be  found  and  notice 
I  understand  the  doctrine  to  be  well  cannot  be  given  to  him,  judicial  pro- 
settled,  that  whether  tiie  debt  is  due  ceedings  to  authorize  a  sale  must  be 
presently  or  upon  time,  the  rights  of  resorted  to." 

the  parties  to  the  pledge  are  such  as  i  Garlick  v.  James,  12  Johns.  (N.  Y.) 

have    been    stated.     (Citing    cases.)  140;  Ind.  &  I.  C.  Ry.  Co.  v.  McKen- 

Nor  do  I  see  any  reason  for  such  a  nan,  24  Ind.  G2. 

distinction.     In  either  case  the  right  2  Loud  v.  Burke,  22  Grat.  (Va.)  264; 

to  redeem  equally  exists  until  a  sale;  Jones  on  Pledges,  sec.  613. 

265 


305.] 


PLEDGE    OR    PAWN. 


[PAKT    II. 


property  himself,  such  purchase  is  not  ])er  se  void,  but  only 
voidable  at  the  instance  of  the  pledgor  or  one  in  privity  with 
him.^  A  purchase,  however,  by  the  pledgee  at  his  own  fore^ 
closure  sale  is  governed  very  largely  by  the  fairness  and  good 
faith  of  the  transaction,  and  if  coupled  with  acquiescence  on 
the  part  of  the  pledgor,  or  a  waiver  of  the  irregularity,  the 
title  to  the  property  would  pass.  It  is,  however,  at  all  times 
subject  to  the  option  of  the  pledgor;  and  if  he  should  refuse  to 
ratify  the  sale  or  to  waive  the  irregularity  within  a  reasonable 
time,  the  sale  would  be  avoided  and  the  pledge  would  be  in 
the  same  condition  as  though  there  had  never  been  a  sale  upon 
foreclosure;  that  is  to  say,  a  sale  under  such  circumstances  is 
not  void,  but  voidable  at  the  option  of  the  pledgor,  who  may 
elect  to  treat  such  a  sale  as  valid  or  avoid  it.^ 


1  Farmers'  Loan  &  Trust  Co.  v.  To- 
ledo &  S.  H.  R.  Co.,  54  Fed.  759,  re- 
versing the  decree  in  48  Fed.  223. 

2  In  Bryan  v.  Baldwin,  52  N.  Y.  235, 
the  court  say:  "The  plaintiff  being 
pledgee  of  the  stock,  and  in  that 
character  exposing  it  for  sale,  could 
not  become  the  purchaser  unless  the 
defendant  assented  to  such  purchase. 
Story  on  Bailments,  sec.  319;  Torry 
V.  Bank  of  Orleans,  7  Paige,  649; 
Hawley  v.  Cramer,  4  Cow.  736.  This 
sale  to  the  plaintiff  was  not  void,  but 
voidable  at  the  election  of  the  de- 
fendant. Edwards  on  Bailments.  260, 
261.  The  defendant  was  at  liberty 
to  ratify  the  sale,  and  had  he  done 
so  it  would  have  been  valid  for  all 
purposes.  The  ratification  would 
have  made  it  lawful  and  relieved  it 
from  any  imputation  of  being  tor- 
tious as  to  him.  The  title  of  the 
plaintiff  to  the  stock  would  have 
been  thereby  made  perfect,  and  the 
defendant  entitled  to  credit  upon  the 
note  for  the  proceeds  of  the  sale. 
But  the  defendant  has  not  done  this, 
but  has  elected  to  treat  the  purchase 
by  the  plaintiff  as  illegal.  This 
avoids  the  sale,  and  that  being 
avoided  bj"  the  defendant,  tlie  parties 
are  remitted  to  their  rights  the  same 


as  though  no  sale  had  been  attempted ; 
the  defendant  is  liable  upon  the  note, 
and  the  plaintiff  still  holds  the  stock 
as  pledgee."  First  Nat.  Bank  v.  Rush, 
85  Fed.  539;  Ross  v.  Barker -(Neb.),  78 
N.  W.  730.  "  It  has  often  been  de- 
cided that  where  notes,  bonds  or 
shares  of  stock  have  been  pledged  as 
collateral  securities  in  default  of  pay- 
ment of  the  principal  debt,  they  may 
with  due  procedure  be  sold,  and  if 
purchased  by  the  pledgee  the  sale  is 
voidable  at  the  election  of  the  pledgor, 
and  he  may  redeem  the  securities  or 
treat  the  sale  as  valid  and  have  the 
amount  or  purchase  price  credited  on 
the  debt."  Fidelity  Ins.,  Trust  & 
Safe  Co.  V.  Roanoke  Iron  Co.,  81  Fed. 
439;  Glidden  v.  Bank,  53  Ohio  St.  588; 
Stedman  v.  Weiskittle,  88  Md.  519. 
"A  sale  by  the  pledgee  of  the  article 
held  in  pledge  which  is  merely  color- 
able, and  which  is  subsequently  re- 
scinded by  the  pledgee,  who  takes 
back  such  article  into  his  possession, 
is  wholly  inoperative  to  divest  the 
pledgor's  title,  and  by  reporting  such 
a  pretended  sale  to  the  pledgor, 
thereby  leading  him  to  believe  that 
his  rights  in  the  pledge  are  gone, 
the  pledgee  disentitles  himself  to 
make  a  subsequent  sale  of  the  pledge 


266 


OH.  v.]       RIGHTS    AND   OBLIGATIONS  AFTER   DEFAULT.       [§§  306,  307. 

§  306.  The  utmost  good  faith  demanded  in  the  matter  of 
the  notice  of  sale. —  The  pledgee  must  exercise  the  utmost 
good  faith  at  every  step  in  the  foreclosure  of  his  pledge,  and 
especially  is  this  demanded  in  the  matter  of  the  notice  of  sale 
in  fixing  the  time  and  place.  Reasonable  time  must  be  given 
so  that  the  pledgor  may,  if  he  can,  redeem  his  property  from 
the  pledge,  and,  if  he  cannot  redeem  it,  procure  purchasers  ta 
attend  the  sale,  that  there  may  be  plenty  of  bidders  and  thus 
the  property  bring  a  fair  price.  A  proper  place  must  be  desig- 
nated, for  by  fixing  the  sale  at  an  unsuitable  place  the  prop- 
erty might  not  be  sold  at  anything  like  a  fair  price.  As,  for 
example,  it  could  not  be  said  to  be  fair  or  just  to  a  pledgor  of 
railroad  stocks,  that  are  generally  bought  and  sold  at  money 
centers,  to  advertise  their  sale  at  some  country  cross-road^ 
where  the  attendance  would  be  very  small,  and  the  bidders 
few  if  any,  while  if  the  pledged  property  consisted  of  farming 
utensils  it  might  be  a  very  proper  place  for  holding  the  sale. 
All  the  circumstances  surrounding  the  particular  case  must 
be  considered;  the  residence  of  the  parties,  and  the  place  where 
it  would  be  convenient  and  reasonably  expected  that  the  sale 
would  take  place.  The  time  and  place  must  be  suitable  in 
view  of  all  the  facts.  "Where  railroad  bonds  were  pledged 
in  Texas  and  sold  in  New  York  it  was  held  a  good  sale,  a& 
New  York  is  the  financial  center  of  the  country."  * 

§  307.  Pledgor  cannot  compel  pledgee  to  sell  within  a 
specified  time. —  The  pledgor  at  all  times  before  the  property 
is  sold  on  foreclosure  has  the  privilege  of  redeeming  the  prop- 
erty by  discharging  the  debt  or  obligation  for  which  it  stands- 
pledged,  and  for  this  reason  it  is  said  he  cannot,  in  the  absence 
of  a  contract  or  agreement,  make  it  the  duty  of  the  pledgee  to 
sell  the  pledged  property  within  a  specified  time  by  request  or 
by  directing  him  to  do  so.  The  supreme  court  of  Minnesota  in 
discussing  this  question  say:  "  There  might  be  such  a  contract 

without  giving  tlie  pledgor  notice  of  buying  in  the  property  at  the  sale^ 

the   facts  and  of  his    intention  to  since  his  duty  to  the  pledgor  to  get 

make  such  sale."     Leahy  v.  Lobdell,  the  highest  price  is  inconsistent  with 

Farrell  &  Co.,  80  Fed.  (505.     Held  in  his  interest  as  a  purchaser.     Lord  v.. 

Massachusetts,  under  statute  author-  Hartford,  175  Mass.  820. 
izing  j)ledgee  on  notice  to  pledgor  t^o        ^  King  v.  Texas  B.  &  Ins.  Co.,  58- 

sell   the   pledge  at  public   auction,  Tex.  669. 
that  the  pledgee  is  precluded  from 

267 


I  307.]  PLEDGE    OR   PAW^r.  [PAET    11. 

between  the  pledgor  and  pledgee  as  would  make  it  the  abso- 
lute duty  of  the  latter  to  sell  within  a  specified  time,  in  which 
case  his  liability  by  reason  of  failure  to  sell  within  the  time 
would  not  depend  on  negligence.  But  in  the  absence  of  some 
such  contract  there  is  no  liability  of  the  pledgee  to  the  pledgor 
except  for  negligence.  The  exercise  of  ordinary  care  in  re- 
spect to  the  thing  pledged  is  the  duty  which  the  law  imposes 
on  a  pledgee,  and  for  a  breach  of  that  duty,  only,  does  he  be- 
come liable.  After  the  contract  of  pledge  is  made,  neither 
party  can,  by  anything  he  alone  may  do,  vary  the  duties  or 
powers  attaching  to  the  relation.  Some  cases  hold  that  a  re- 
quest to  sell  may  be  an  element  of  the  proof  of  negligence,  but 
we  express  no  opinion  on  the  point,  nor  do  we  express  any 
where,  in  the  absence  of  express  contract,  it  is  the  duty  of  the 
pledgee  at  any  time  to  sell  a  chattel  pledged."^ 

The  question  has  sometimes  arisen  whether,  in  case  of  a  fall- 
ing market,  the  pledgor  could  not  by  request  or  demand  com- 
pel the  pledgee  to  sell  the  property,  and  if  he  failed  to  do  so, 
whether  in  such  case  the  pledgee  would  not  be  liable  for  any 
depreciation  in  value  where  the  sale  was  made  at  a  time  when 
the  property  had  materially  depreciated,  and  the  price  for 
which  it  Avas  sold  was  very  much  less  than  could  have  been 
obtained  for  it  at  the  time  the  request  was  made  by  the  bailor. 
It  seems,  however,  to  be  well  settled  that  the  pledgee  is  not 
compelled  to  sell  the  pledge  even  when  requested  so  to  do 
by  the  pledgor,  for  the  reason  that  the  pledgor  always  has  a 
remedy;  for  if  he  wishes  to  save  himself  from  depreciation  in 
the  value  of  the  pledge,  he  can  redeem  the  property.  This  is 
always  his  right;  and  so  it  follows  that  he  cannot  charge  the 
creditor  with  such  depreciation  without  having  first  tendered 
to  him  the  amount  of  the  debt.-  But  if  the  refusal  to  sell 
upon  request  is  simply  by  reason  of  bad  faith,  or  a  faulty  dis- 
cretion equal  to  negligence,  in  such  case  it  would  seem  that 
there  might  be  a  liability  to  which  the  bailee  would  be  com- 
pelled to  answer.  This  is  referred  to  by  the  court  in  Wells  et 
at.  V.  Wells,^  where  they  say:  "It  is  well  understood  that  in 
order  to  charge  the  pledgee  of  such  a  collateral  as  this  with 

1  Cooper  V.  Simpson,  41  Minn.  46,  gard  v.  Curtenius,  15  AVend.  lo5; 
4  L.  R.  A.  194.  Rozet  v.  McClennan,  48  111.  345. 

2  Jones  on  Pledges,  sec.  606;  Tag-        353  vt.  1;  Hanna  v.  Holton,  78  Pa. 

268 


1 


CH.  v.]  EIGHTS    AND   OBLIGATIONS    AFTER    DP^FAULT.  [§  308. 

the  collateral  as  a  payment  jpro  tanio  upon  his  debt,  he  must 
be  chargeable  with  bad  faith  or  faulty  discretion  in  the  course 
taken  in  respect  to  the  collateral,  so  that  it  would  be  detri- 
mental and  unjust  toward  the  pledgor  not  so  to  charge  the 
pledgee."  This  is  no  doubt  the  rule  in  case  the  property  pledged 
is  negotiable  instruments.  In  such  case  it  is  the  duty  of  the 
pledgee  not  only  so  to  deal  with  them  as  not  to  destroy  their 
value,  but  to  use  ordinary  diligence  in  making  them  available 
for  the  payment  of  the  debt,  and  if  he  suffers  indorsed  paper 
to  mature  without  resorting  to  the  necessary  steps  to  charge 
the  indorser,  or  fails  to  pursue  reasonably  the  primary  parties, 
he  may  be  held  responsible  for  any  loss  that  may  ensue.^  To 
what  extent,  however,  this  rule  applies  where  the  pledged 
property  is  chattels  and  not  in  the  nature  of  negotiable  paper, 
is  not  so  well  settled;  but  it  would  seem  that  where  the  pledge 
is  such  property,  the  obligation  to  sell  could  not  be  fixed  upon 
the  pledgee  upon  notice  and  demand  unless  it  could  be  shown 
that  the  refusal  was  an  exercise  of  bad  faith,  and  that  uhe 
pledgor  would  be  obliged  to  rely  upon  his  right  to  redeem  in 
order  to  protect  himself  because  of  the  depreciation. 

§  308.  Surplus  in  the  hands  of  the  pledgee,  proceeds  of 
the  sale. —  The  only  right,  title  or  property  of  the  pledgee  in 
the  property  pledged  is  co-extensive  with  the  securing  of  the 
payment  of  the  debt  or  the  performance  of  the  obligation. 
The  legal  title  to  the  property  is  in  the  pledgor,  subject  only 
to  this  right  of  security  in  the  hands  of  the  pledgee.  It  there- 
fore follows  that  whenever  the  purposes  of  the  pledge,  that  is 
to  sa}'',  the  securing  of  the  payment  of  the  debt,  is  satisfied,  the 
pledgor's  right  to  the  remainder  is  absolute.  The  pledgee 
being  simply  a  trustee  for  this  amount  is  bound  to  account  to 
the  pledgor  for  whatever  he  obtains  upon  the  sale  of  the 
pledged  property,  and  after  deducting  the  amount  due  upon 

St.  334.  "When  the  collateral  is  lost  ^  Easton  v.  German  American  Bank, 
by  the  insolvency  of  the  debtor  in  it,  24  Fed.  523:  affirmed,  127  U.  S.  532. 
through  the  supine  negligence  of  the  ''If  the  pledgee  sells  the  pledge 
creditor,  he  must  account  for  the  fairly  and  publicly  he  is  not  answer- 
loss  to  his  own  debtor."  Baker  v.  able  for  the  loss  from  its  selling  for 
Briggs.  8  Pick.  129;  Paine  v.  Pack-  less  than  its  estimated  value."  Ains- 
ard,  13  Johns.  174;  5  Wait's  Actions'  worth  v.  Bowen,  9  Wis.  348. 
and  Defenses,  234;  Cooper  v.  Simp- 
son, 41  Minn.  46. 

269 


§§  300,  310.]  PLEDGE  OE  PAWisr,  [part  II. 

the  indebtedness  and  the  expenses  of  the  sale  or  other  legal 
expenses,  he  must  pay  over  to  the  pledgor  any  surplus  that 
may  remain  in  his  hands;  and  if  he  fails  or  refuses  so  to  do, 
the  pledgor  may  collect  the  surplus  due  him  in  an  action  of 
assumpsit} 

§  309.  (2) Foreclosure  by  statutory  proceedings. —  In 

nearly  all  of  the  states  the  foreclosure  of  the  pledge  or  pawn 
has  been  regulated  by  statute.  In  some  of  the  states,  however, 
the  statute  is  so  worded  that  it  does  not  preclude  a  common- 
law  foreclosure.  A  citation  of  the  several  statutes  and  a  dis- 
cussion thereof  would  be  impracticable  here.  However,  it  may 
be  remarked  that  the  statutes  of  the  particular  state  where  fore- 
closure is  to  be  had  should  be  examined.^ 

§310.  (3)  Foreclosure  in  equity. —  When  the  business  is 
complicated  and  the  amount  of  the  indebtedness  is  large,  and 
a  large  amount  of  pledged  property  is  held  to  secure  its  pay- 
ment, or  where  the  pledgor  cannot  be  personally  notified  be- 
cause of  absence  or  for  some  other  reason,  or  where  the  legal 
remedy  is  not  adequate,  and  this  even  though  the  statute 
provides  the  only  mode  of  foreclosing  the  pledge,  or  where 
the  rights  and  remedies  of  the  pledgee  are  questioned  or  de- 
nied, the  pledgee  may  and  should  file  a  bill  in  equity,  and 
through  the  court  of  chancery  obtain  a  decree  of  foreclosure 
and  for  the  sale  of  the  pledged  property.  And  so  it  may  be 
said  that  where  there  are  conflicting  claims  to  the  pledged 
property,  and  proceedings  in  the  ordinary  way  by  common- 
law  foreclosure  would  not  settle  the  conflicting  claims,  or 
where  there  are  intervening  rights,  no  matter  how  they  may 
arise, —  in  such  case  the  ordinary  statutory  foreclosure  or  the 
common-law  foreclosure  would  be  by  no  means  adequate,  and 
the  pledgee  should  proceed  by  foreclosure  in  equity,  and  thus 
by  a  decree  of  that  court  settle  all  the  controversies  between 
the  parties.*     It  has  been  said  that  some  question  might  arise 

1  Jones  on  Pledges,  sees.  649,650;  the  statute  does  not  affect  a  common- 
Foster  V.  Berg,  104  Pa.  St.  324;  Miles  law  foreclosure.  Colville  v.  Loud.  135 
V.  Walther.  3  Mo.  App.  96;  Loomis  v.  Mass,  41,  and  Mange  v.  Heringhi,  26 
Stave,  72  111.  633:  Taylor  v.  Turner,  Cal.  527;  Jones  on  Pledges,  sec.  616. 
87  111.  296.  3  Horner  v.  Savings  Bank,  7  Conn. 

2  In  Massachusetts  and  California  478. 

270 


CH.  v.]       EIGHTS  AND    OBLIGATIONS    AFTER    DEFAULT.       [§§  311,  312. 

as  to  the  jurisdiction  of  the  equity  court  where,  by  statute,  the 
foreclosure  is  limited  to  those  cases  where  the  remedy  by  sale 
or  notice  is  not  complete.  But  it  has  been  held  that  where 
the  foreclosure  in  such  cases  involves  an  accounting,  the  equity 
jurisdiction  will  be  upheld,^  but  if  it  is  merely  a  computation 
it  will  be  denied.^ 

§  311.  The  notice  and  sale  by  virtue  of  decree. —  The  man- 
ner of  giving  the  notice  of  sale,  the  notice  as  to  time  and 
place,  the  sale,  and  the  entire  procedure,  where  the  foreclosure 
is  had  in  a  court  of  equity,  is  fixed  and  settled  by  the  practice 
and  procedure  of  the  chancery  court;  all  such  directions  are 
generally  given  in  the  decree  of  foreclosure. 

§  312.  When  the  pledgor  is  insolvent  or  bankrupt. —  The 
right  of  the  pledgee  to  hold  and  possess  the  pledged  property, 
when  the  pledge  is  without  fraud  and  honestly  created  to  se- 
cure the  debt  or  obligation,  is  an  absolute  property  right  of  the 
pledgee  and  he  cannot  be  deprived  of  it  by  the  pledgor  or  the 
pledgor's  creditors.  It  therefore  follows  that  the  assignee  in 
bankruptcy  cannot  convert  this  interest  of  the  pledgee  in  the 
pledged  property  as  an  asset  of  the  pledgor.  He  can  only  take 
the  interest  of  the  pledgor  in  the  property,  which,  as  we  have 
seen,  is  the  title  to  the  property  subject  to  the  pledge;  and  it 
has  been  held  that  if  an  assignee  realizes  on  pledged  property 
in  the  possession  of  the  pledgor  for  temporary  purposes,  he 
holds  the  proceeds  in  trust  for  the  pledgee.^  In  Gibson  v. 
Waj'den*  the  court  say:  "  In  cases  like  this  the  assignee  stands 
in  the  place  of  the  bankrupt;  his  rights  are  their  rights;  and 
theirs,  like  the  liens  of  judgments  at  law,  are  subordinate  to 
all  the  prior  liens,  legal  and  equitable,  upon  the  property  in 
question."  If  the  pledge  is  fraudulent,  then  the  assignee,  stand- 
ing in  the  place  of  and  for  the  pledgor,  and  also  for  the  cred- 
itors of  the  pledgor,  may  proceed  to  have  the  pledge  set  aside, 
and  the  pledgor  by  collusion  with  the  pledgee  could  not  thwart 
the  rights  of  the  assignee  in  this  regard.  The  assignee  can  do 
just  what  the  honest  pledgor  ought  to  do;  nor  can  he  be  de- 
feated by  any  fraudulent  agreement  of  the  pledgor  or  pledgee. 

•  Durant  v.  Einstine,  5  Robt.  (N.  Y.)        3  In  re  Wiley,  4  Biss.  (U.  S.)  171. 
423.  1        4  14  Wall.   (U.S.)   248;  Kendall  & 

2Dupay  V.  Gibson,  36  111.  197.  Co.  v.  Mason,  7  Ohio  St.  199. 

271 


§  313.]  PLEDGE    OK   PAWN.  [PAET    II, 

"  So  while  the  pledgor  could  not  have  the  pledge  set  aside  as- 
fraudulent,  the  assignee  might."  ^ 

The  authorities  are  not  entirely  harmonious  as  to  the  pro- 
ceedings that  the  pledgee  may  take  in  proving  his  claim  and 
obtaining  a  settlement  of  the  pledge  and  securing  satisfaction 
for  the  pledged  indebtedness.  It  seems  clear,  however,  that 
the  pledgee  may  sell  the  pledged  property  upon  default  and 
apply  the  proceeds  of  the  sale  after  the  pledgor's  insolvency. 
The  assignee  having  taken  possession  of  the  rights,  interests- 
and  property  of  the  pledgor,  undoubtedly  should  receive  notice 
of  the  sale  as  well  as  the  pledgor,  because  legally  he  stands  in 
the  place  of  the  pledgor  and  is  representing  a  property  inter- 
est in  the  pledge;  but  the  assignee,  it  would  seem,  could  not 
deprive  the  pledgee  of  his  right  to  foreclose,  nor  could  he 
obstruct  the  sale  for  the  reason  that  the  property  will  not  at 
the  time  bring  a  good  price.  He  would  be  subject  to  the  same 
rules  and  principles,  already  discussed,  that  govern  the  pledgor 
in  such  like  cases,  and  the  only  remedy  of  the  assignee,  or  of 
the  creditors  in  such  case,  would  be  to  redeem  the  property 
by  paying  the  debt.-  Should  the  pledged  property  bring  more 
than  the  amount  due  the  pledgee,  then  the  pledgee  must  ac- 
count to  the  pledgor's  assignee  for  the  surplus ;  and  should  the 
property  bring  less  than  the  amount  due  the  pledgee,  he  has  a 
claim  for  the  deficiency  against  the  estate,  and  in  that  case 
must  take  j9rc  rata  with  other  creditors.^ 

Section  IL 

§  313.  Rights,  remedies  and  liabilities  of  the  pledgor 
and  pledgee  of  negotiable  instruments  after  default. —  The 

same  rights  and  remedies  that  the  law  accords  to  the  pledgee 
of  corporeal  property  after  default  do  not  in  every  particular 
obtain  in  case  the  pledged  property  consists  of  negotiable  in- 
struments or  choses  in  action.  The  difference  in  the  rights  of 
the  pledgee  in  case  the  pledged  property  is  corporeal  or  con- 

1  Bank  of  Alexandria  v.  Herbert,  8  Brough's  Estate,  75  Pa.  St.  460;  Van 

Cranch  (U.  S.),  36;  Casey  v.  Caveroc,  Matter  v.  Ely.  12  N.  J.  Eq.  211;  West 

96  U.  S.  467.  V.  Bank  of  Rutland,  19  Vt.  403 ;  Midge- 

^  Jerome  v.  McCarter,  94  U.  S.  734.  ley  v.  Slocum,  32  How.  Pr.  (N.  Y.) 

3Findley  v.  Hosmer,  2  Conn.  350;  423;  Steeper  v.  McKee,  86  Pa.  St.  188-^ 

Walker    v.     Baxter,    26     Vt.     710;  Richardson  v.  Wyman,  4  Gray,  553. 

272 


CH.   v.]  EIGHTS    AND    OBLIGATIONS    AFTER   DEFAULT.  [§  313. 

sists  of  negotiable  instruments  grows  out  of  the  difference  in 
the  nature  and  kind  of  property  pledged.  Corporeal  prop- 
erty is  presumed  always  to  have  a  market  value  which  re])re- 
sents  the  true  value  of  the  property,  while  negotiable  instru- 
ments are  not  presumed  to  have  a  value  upon  the  market  be- 
fore they  are  due,  so  the  selling  of  them  at  public  or  private 
sale  necessarily  would  work  an  injustice  to  the  pledgor.  The 
rule,  however,  is  different  where  the  pledged  property  con- 
sists of  stocks  and  bonds  of  corporations.  These  may  be  sold 
at  public  auction  after  demand  of  payment  and  due  notice  of 
sale,  the  same  as  corporeal  property,  because  that,  is  the  usual 
method  of  turning  such  securities  into  money.  But  the  rule 
when  the  property  consists  of  negotiable  instruments,  like 
promissory  notes  or  choses  in  action,  differs  from  this,  for  the 
reason  that  it  is  not  the  "  usual  method  "  of  turning  such  se- 
curities into  money.  A  sale,  however,  at  public  auction  of 
the  securities  in  case  of  default  may  be  stipulated  by  an  agree- 
ment between  the  parties,  and  in  such  case  be  legally  made,  but 
where  there  is  no  such  agreement  the  rule  is  as  we  have  stated. 
In  Wheeler  v.  Newhould^  it  was  held  "that  the  pledge  of  com- 
mercial paper  as  security  for  a  loan  of  money  does  not,  in  the 
absence  of  a  special  power  for  that  purpose,  authorize  the 
pledgee  upon  the  non-payment  of  the  debt,  and  upon  notice  to 
the  pledgor,  to  sell  the  securities  pledged  either  at  public  or 
private  sale,  but  he  is  bound  to  hold  and  collect  the  same  as 
they  become  due,  and  apply  the  money  to  the  payment  of  the 
loan."  The  court  say  further:  "  When  the  subject  of  the  pledge 
consists  of  goods  and  merchandise,  or  chattels  of  any  kind, 
there  is  no  other  way  in  wiiich  they  can  be  applied  to  the  pay- 
ment of  the  debt,  unless  they  are  first  converted  into  money, 
which  can  only  be  done  by  a  sale.  The  credi^lFmust  resort  to 
this  process  because  there  is  no  other.  Goods  and  merchandise, 
and  personal  chattels  generally,  are  constantly  bought  and 
sold  in  the  market,  and  the  means  to  test  their  proximate  value 
is  always  at  hand.  Their  value  at  the  place  they  are  offered 
is  their  value  everywhere  else;  because  it  depends  upon  their 
intrinsic  worth,  and  not  upon  extraneous  circumstances.  When 
the  creditor,  therefore,  offers  this  kind  of  property  for  sale  to 

1 16  N.  Y.  392. 
18  273 


g  313.]  PLEDGE    OR    PAWN.  [PART    IT. 

satisfy  his  debt,  he  does  the  debtor  no  injustice  if  the  sale  is 
public,  properly  conducted  and  upon  due  notice.  But  where 
choses  in  action  for  the  payment  of  money,  notes,  bills,  bonds 
and  mortgages  are  the  subject  of  the  pledge,  the  case  is  widely 
different.  This  species  of  property  has  no  intrinsic  value  of 
which  one  person  may  judge  as  well  as  another.  They  are  the 
written  evidences  of  debts  due  or  to  become  due  from  others, 
and  their  value  depends  exclusively  upon  the  solvency  and 
ability  of  the  debtor  to  pay  them  at  maturity.  They  are  not 
merchandise  in  the  usual  sense  of  the  word;  and  although  they 
are  sometimes  the  subject  of  sale,  the  practice  is  of  recent 
origin,  and  evidence  of  the  abuses  rather  than  the  legitimate 
uses  of  credit.  A  creditor  holding  such  property  in  trust  for 
the  use  of  his  debtor,  and  offering  it  for  sale  in  satisfaction  of 
his  debt,  can  hardly  fail  to  sacrifice  it ;  for  unless  the  solvency 
and  circumstances  of  the  makers  of  the  note  are  well  known 
and  placed  beyond  doubt,  few  will  purchase,  and  those  only 
for  the  purpose  of  speculation  and  at  ruinously  low  prices.  Un- 
less the  stipulations  of  the  contract  are  expressly  to  that  effect, 
the  law  will  not  require  the  debtor  to  submit  his  property  to 
an  ordeal  which  must  be,  in  a  great  measure,  destructive  of  its 
value.  It  will  rather  presume  that  it  was  the  intention  of  the  par- 
ties to  the  contract  that  the  creditor  should,  if  he  resorted  to 
the  pledge  in  place  of  the  personal  liability  of  the  debtor,  ac- 
cept the  money  upon  the  hypothecated  securities  as  it  became 
due  and  payable,  and  apply  it  to  the  satisfaction  of  his  debt. 
This  is  the  fair  import  of  the  contract;  for  it  is  not  reasonable 
to  infer  an  intention  to  subject  to  the  hazards  of  a  sale  a  species 
of  property  which  is  not  usually  the  subject  of  a  sale,  more  es- 
pecially when  that  property  is  itself  a  means  of  reimbursing  the 
creditor  without  loss,  or  the  hazard  of  loss,  to  the  debtor.  The 
acceptance  of  the  pledge  does  not  suspend  the  creditor's  remedy 
against  the  debtor  a  moment  after  the  debt  falls  due.  But  if 
he  resorts  to  the  hypothecated  securities,  consisting  of  the  writ- 
obligations  of  others  for  the  payment  of  money,  he  must  ac- 
cept the  money  upon  them  as  they  become  due,  in  place  of 
selling  and  perhaps  sacrificing  them  at  a  sale.  This  is  just 
and  right  both  to  debtor  and  creditor,  and  the  law  seeks  to  ac- 
complish nothing  less." 

274 


I 


CII.   v.]  EIGHTS    AND    OBLIGATIONS    AFTEE    DEFAULT.  [§   313. 

In  Joliet  Iron  Co.  v.  Seiota,  etc.  Co}  the  court  say :  "  The  pledge 
of  commercial  paper  as  colhiteral  securit}^  for  the  payment  of 
a  debt  does  not,  in  the  absence  of  a  special  power  for  that  pur- 
pose, authorize  the  parties  to  whom  such  paper  is  so  pledged 
to  sell  the  securities  so  pledged  upon  default  of  payment  either 
at  public  or  private  sale.  lie  is  bound  to  hold  and  collect  the 
same  as  it  becomes  due  and  apply  the  net  proceeds  to  the  pay- 
ment of  the  debt  so  secured."  And  where  a  sale  has  been  au- 
thorized upon  default  of  the  pledgor  by  the  agreement  of  the 
parties,  the  courts  have  construed  such  an  agreement  with  very 
great  strictness,  holding  that  the  power  conferred  is  in  deroga- 
tion of  common-law  duties  and  takes  the  place  of  wise  and 
equitable  safeguards  which  are  interposed  for  the  protection 
of  the  pledgor,  and  relieves  the  pledgee  from  such  duties  im- 
posed upon  him,  and  that  these  safeguards  and  duties  are  in- 
tended to  prevent  fraud  and  a  breach  of  trust  imposed.  The 
authorities,  however,  are  not  entirely  harmonious  upon  this 
subject.  In  some  of  the  states  it  has  been  held  that  negotiable 
paper  may  be  sold  the  same  as  corporeal  property.^  In  other 
respects  the  rights  and  remedies  of  the  pledgee  are  similar  to 
those  where  the  property  pledged  is  corporeal.  The  pledgee 
may  bring  an  action  upon  the  debt  secured,  or  may  resort  to 
the  pledged  property ;  and  if  he  brings  an  action   upon   the 

183  111.  549;  Union  Trust  Co.  v.  well  v.  National  Bank,  90  N.  Y.  483. 
Rigdon.  93  111.  458.  "The  law  is  well  "The  pledging  of  promissory  notes 
settled,  where  there  is  no  agreement  embraces  power  to  collect."  In  Han- 
otherwise,  the  pledgee  in  possession  na  v.  Holton,  78  Pa.  St.  334:  "By  an 
takes  only  a  lien  on  the  property  as  assignment  of  collateral  security  a 
a  security,  and  is  bound  to  keep  the  privity  in  contract  is  established 
pledge  and  not  use  it  to  its  detri-  which  invests  the  assignee  with  the 
ment.  and  to  redeliver  it  on  payment  ownership  of  the  collateral  for  the 
of  the  debt.  His  character  is  that  of  purpose  of  dominion  over  the  debt 
a  trustee  for  the  pledgor  to  return  assigned.  He  alone  is  empowered  to 
the  property  if  redeemed,  and,  if  not  receive  the  money  to  be  paid  upon 
i-edeemed,  then  first  to  pay  the  debt,  it  and  to  control  it  to  protect  his 
and  second  to  pay  over  the  surplus,  rigiits." 

and  he  cannot  so  deal  with  the  trust  -Donohoe  v.  Gamble,  38  Cal.  340; 

property  as  to  destroy  or  even  im-  Huyler  v.  Dahoney,  48  Tex.  284.   For 

pair  its  value."     Fletcher  v.  Dickin-  compilation    and    discussion   of  au- 

son.  7  Allen.  23;   Nelson  v.  Edwards,  thorities.  see  National  Bank  of  111.  v. 
40  Barb.  279;  Nelson  v.  Wellington,  5  '  Baker,  4  L.  R.  A.  586  and  notes;  also 

Bosvv.  178;  Jeniiess  v.  Bean,  10  N.  H.  Golden   v.  Mechanics'  Nat.  Bank,  43 

260;  Austin  v.  Curtis,  31  Vt.  72;  Far-  L.  R.  A.  737,  and  the  note. 

275 


^§  3L4,  315.]  PLEDGE    OR    PAWN.  [PAET    II. 

debt,  he  need  not,  during  the  pendency  of  the  action,  surren- 
der the  security,  but  may  hokl  the  property  pledged.^  Isor 
will  the  judgment,  if  one  is  obtained,  destroy  the  right  of  the 
pledgee  to  hold  possession  of  the  pledged  property.  Nothing 
will  deprive  him  of  his  right  to  possession  except  payment  of 
the  debt. 

§314.  The  English  rule. —  The  English  courts  generally 
follow  the  rule  that  the  sale  of  negotiable  instruments  and 
choses  in  action,  after  failure  to  pay  the  pledged  debt,  may  be 
made  by  making  demand  and  giving  notice  of  the  time  and 
place  of  the  sale,  the  same  as  though  the  property  were  cor- 
poreal property.^ 

§  315.  Recourse  to  the  pledged  security. —  The  pledgee, 
where  the  property  pledged  is  negotiable  instruments  or  choses 
in  action,  may  have  recourse  to  the  pledged  property  in  case 
of  default  of  the  pledgor;  but  his  procedure,  as  we  have  seen, 
must  necessarily  differ  from  the  procedure  as  stated  where  the 
property  is  corporeal.  It  is  his  duty  to  hold  the  negotiable 
paper  or  chose  in  action  until  the  same  is  due  and  then  col- 
lect it  and  apply  it  upon  the  pledged  indebtedness.  He  may 
collect  the  negotiable  paper  either  with  or  without  suit,  as  the 
case  requires.  After  collecting  sufficient  upon  the  pledged  se- 
curities to  satisfy  the  indebtedness  and  the  cost  of  collection, 
it  is  his  duty  to  account  to  the  pledgor  for  any  surplus,  either  in 
money  or  securities,  remaining  in  his  hands  after  the  pledged 
indebtedness  is  thus  satisfied.  The  pledgee  thus  holding  nego- 
tiable instruments  as  securities  stands  in  the  position  of  a 
trustee  of  the  property;  he  is  bound  to  exercise  ordinary  care 
in  looking  after  the  pledge.  It  is  not  only  his  right  but  it  is 
his  duty  to  collect  the  amount  due  upon  the  securities. 

The  supreme  court  of  Illinois,  in  the  case  of  Joliet  Iron  Co.  v. 
Sciota  Iron  Co.,  say:  "A  person  holding  property  or  security 
in  pledge  occupies  the  relation  of  trustee  for  the  owner,  and 
as  such,  in  the  absence  of  special  power  to  do  otherwise,  is 
bound  to  proceed  as  a  prudent  owner  would."  This  sums  up 
the  duty  of  the  pledgee  holding  the  pledged  negotiable  instru- 

1  Elder  v.  Rouse,  15  Wend.  218:  2  France  v.  Clark,  L.  R.  23  Ch.  Div. 
Munger  v.  Albany  City  Nat.  Bank,  830;  52  L.  J.  Ch.  (N.  S.)  263;  48  L.  T. 
85  N.  Y.  580;  Whitvvell  v.  Brigham,  (N.  S.)  185;  Potter  v.  Thompson,  10 
19  Pick.  117.  R.  I.  1. 

276 


CH.  v.]  EIGHTS    AND    OBLIGATIONS    AFTER    DEFAULT.  [§  316. 

ments.  If  he  fails  to  exercise  that  diligence  and  care  which  a 
prudent  owner  under  just  such  circumstances  would  exercise, 
he  becomes  liable  for  any  injury  that  may  result  because  of 
such  negligence  to  the  pledgor  or  his  assigns. 

§  316.  The  pledgee's  diligence  in  collecting  the  securities. 
The  pledgee  is  a  bailee  of  the  securities  for  the  benefit  of  both 
parties.  He  must  therefore  exercise  ordinary  diligence  in  per- 
forming every  duty  incumbent  upon  him.  What  would  the  or- 
dinarily prudent  owner  of  just  such  negotiable  instruments  do 
under  just  such  circumstances?  The  answer  to  this  question 
defines  the  duties  of  such  a  pledgee  and  fixes  as  well  his  liabil- 
ity. The  court  in  Hazard  v.  Wells  ^  say:  "  A  creditor  holding- 
negotiable  paper  as  collateral  security  is  required  to  use  a  dif- 
ferent kind  of  diligence  from  that  required  of  one  holding  mer- 
chandise or  other  corporeal  property,  and  yet  the  diligence  in 
each  case  is  only  such  as  is  appropriate  to  the  nature  of  the 
property.  If  the  property  be  precious  stones,  safe  keeping  is 
all  that  is  required.  If  it  be  grain,  it  must  be  properly  stored 
and  protected  from  all  injury.  The  diligence  required  of  the 
holder  of  promissory  notes,  or  other  securities  for  the  payment 
of  money,  has  reference  to  the  danger  that  the  parties  liable 
on  them  may  become  insolvent  and  unable  to  pay.  A  prudent 
business  man  will  collect  such  obligations  when  they  are  due, 
or  will  endeavor  to  enforce  them  by  suit.  If,  therefore,  a  cred- 
itor neglects  to  enforce  the  collection  of  such  securities  held  in 
pledge,  and  delays  till  the  parties  liable  have  become  insolvent, 
he  is  as  much  guilty  of  negligence  as  if  he  had  suffered  grain 
held  in  pledge  to  be  destroj'ed  by  dampness  or  heat  for  lack 
of  proper  storage."  The  degree  of  diligence,  however,  that  is 
required  to  be  exercised  by  the  pledgee  may  be  modified  by 
an  agreement  between  the  parties.  As,  for  example,  it  has 
been  held  that  where  the  parties  make  an  express  agreement 
as  to  the  diligence  to  be  used,  they  will  be  bound  by  that  and 

1 2  Abb.  N.  Cas.  (N.  Y.)  440.  "  Where  ment  as  to  the  diligence  to  be  used." 

the  pledgee  knows  tliat  the  maker  of  Lee  v.  Baldwin,  10  Ga.  208;  Muirhead 

a  pledged  note  is  in  embarrassed  cir-  v.  Kilpatrick,  21  Pa.  St.  2i>7:  Girard 

cumstances  he  must  use  greater  dili-  F.  &  M.  Ins.  Co.  v.  Muir,  46  Pa.  St.  504; 

gence  than  if  the  maker  were  known  Miller  v.  Gettysburg  Bank,  8  Watts 

to  be  solvent."    Slevin  v.  Morrow,  4  (Pa.),  192;  Reeves  v.  Plough,  41  Ind. 

Ind.  425.     "The    parties   may   bind  209;  Jones  v.  Hicks,  52  Miss.  683. 
themselves,   however,   by  an  agree- 

377 


g  317.]  PLEDGE    OK    PAWN.  "  [PAET    II. 

not  by  the  general  law.^  But,  whatever  the  agreement  ma}^ 
be,  or  whatever  the  condition  of  the  case,  the  law  requires 
that  the  pledgee  shall  act  in  the  utmost  good  faith.  This  is  a 
rule  that  obtains  throughout  the  law  of  bailments,  and  applies 
to  this  class  of  cases. 

§  317.  Pledgee  may  recover  in  an  action  on  the  negotiable 
securities. —  Kegotiable  paper  having  been  pledged  and  placed 
in  the  hands  of  the  pledgee,  the  pledgee  may  recover,  in  an 
action  upon  the  security,  a  judgment  against  the  maker  and 
indorsers  of  the  paper  when  the  same  becomes  due,  and  he 
need  not  wait  until  the  pledgee's  indebtedness  is  due,  but  may 
collect  by  a  suit  at  law  or  otherwise  upon  the  collaterals  and 
hold  and  apply  the  amount  collected  on  the  pledge.  In  such 
action  he  will  be  entitled  to  a  judgment  for  the  full  amount 
of  the  collateral  even  though  it  exceeds  the  amount  of  the 
debt  secured.  If,  however,  there  are  equities  in  favor  of  the 
maker  against  the  pledgor,  the  pledgee  could  not  recover 
an  amount  more  than  sufficient  to  meet  the  pledged  indebted- 
ness, the  theory  of  the  law  being  that  the  maker  is  liable  for 
the  full  amount  of  the  face  value  of  his  paper,  and  the  pledge 
can  in  no  way  either  benefit  or  injure  him.-  And  so  where 
the  pledgee  holds  accommodation  paper  as  security,  he  having 
obtained  the  pledge  in  good  faith  for  a  legal  and  subsisting 
debt,  the  presumption  attaches  that  he  gave  full  value  for  it, 
and  he  can  recover  the  full  amount  due  upon  the  paper  to  meet 
the  amount  of  the  pledged  indebtedness,  and  in  such  case  the 
pledgor  cannot  enjoin  the  collection  of  such  paper  until  the 

^Lee  V.  Baldwin,  10  Ga.  208;  Bar  v.  ment  to  the  contrary,  bring  differ- 

Cain,  33  Ind.  416.  ent  suits,  one  on  tlie  original   debt 

2  Wilkinson  V.  Jeffreys,  30  Ga.  153;  and  others   on  the  collaterals,  and 

Tarbell   v.   Stuyvesant,  26  Vt.  513;  prosecute  them  all  to  judgment,  and 

Holeman  v.  Hobson.S  Humph.  (Tenn.)  collect  on  the  judgments  .at  least  the 

127;  Parish  v.  Stone,  14  Pick.  (Mass.)  amount  of  the  original  indebtedness 

198;  Fisher  t.  Fisher,  98  Mass.   303;  and  the  costs  in  all  the  suits.     If  he 

Beldingv.  Manley, 21  Vt.  550;  Jackson  collects  anything  on  the  collaterals 

V.  Bank,  42  N.  J.  L.  177;  Duncomb  v.  after  the  indebtedness  which  they 

N.  Y.  Ry.   Co.   84  N.  Y.   190;  Green-  were  assigned  to  secure  is  paid,  he 

wall  V.  Hayden,  78  Ky.  332;  Mfg.  Co.  receives  it,  of  course,  for  the  benefit 

V.  Falvey,  20  Wis.  211.  "But  if  notes  of  the  assignor."     Bank  v.  Roberts, 

are  assigned  as    collateral  security  45  Wis.  373;  Tooke  v.  Newman,  75  111. 

for  a   debt,  the  holder  may  at   the  215. 
same  time,  unless  there  is  an  agree- 

278 


CH.  v.]  EIGHTS    AND    OBLIGATIONS    AFTER   DEFAULT.  [§  317. 

creditor  holding  the  same  shall  first  exhaust  other  securities 
for  the  same  debt  placed  Avith  him  by  his  debtor.  This  has 
been  held  to  be  the  rule  of  law  even  though  the  making  of 
such  i^aper  was  procured  by  fraud.  The  presumption  that  the 
pledgee  paid  full  value  for  the  paper  may,  however,  be  over- 
come, by  proof,  and  if  it  be  shown  that  the  paper  is  accommoda- 
tion paper,  and  that  the  pledged  indebtedness  can  be  satisfied 
by  a  less  sum  than  the  amount  due,  then  judgment  will  only 
be  allowed  for  an  amount  necessary  to  satisfy  the  pledged 
debt.  And  in  such  case  the  principle  of  equity,  that  "  where  a 
party  has  a  lien  upon  two  funds,  out  of  either  of  which  his  debt 
can  be  paid,  and  another  has  a  lien  on  one  only  of  the  funds 
for  his  debt,  the  latter  has  a  right  to  compel  the  former  to  re- 
sort to  the  other  fund  in  the  first  instance  for  the  satisfaction 
of  his  debt,"  does  not  apply;  this  is  applied  only  to  sureties.' 
An  interesting  case  where  this  subject  is  very  thoroughly 
discussed  by  counsel  and  court  is  Farwell  v.  Imjjorters',  etc. 
Baiik?  "Plaintiffs  made  their  promissory  note  to  their  own 
order  which  they  indorsed  to  brokers  to  sell.  The  brokers, 
without  the  plaintiffs'  knowledge  or  consent,  delivered  said 
note,  with  others  belonging  to  themselves,  to  defendant,  as  se- 
curity for  a  call  loan.  Before  the  maturity  of  said  note  plaint- 
iffs notified  defendant  of  their  rights  in  respect  to  it;  they  paid 
the  note  when  due.  At  that  time  defendant  had  not  received 
enough  from  the  other  collaterals  to  pay  the  loan,  but  there- 
after did  receive  more  than  enough  for  that  purpose.  In  an 
action  for  an  accounting  to  determine  defendant's  rights  to  the 
proceeds  of  said  note  and  to  compel  payment  of  any  portion 
thereof  not  necessary  to  satisf}'  its  lien  thereon,  held,  that  hav- 
ing received  the  note  from  the  ostensible  owners  in  ignorance 
of  the  plaintiffs'  rights,  defendant  could  hold  the  same  as  se- 
curity; yet  the  right  of  property  did  not  pass,  but  remained  in 
plaintiffs,  subject  to  defendant's  lien;  and  while  the  latter,  as 

1  Fisher  et  al.  v.  Fisher  et  al.,  08  ovvn  of  less  amount  than  tlie  face  of 

Mass.  803.     "If  a  negotiable  promis-  the  note,  tlie  pledgees,  if  they  take  it 

sory  note,  which  is  without  consicl-  Vithout   notice,  are   to   be   deemed 

eration  as  between  the  original  itar-  hoUlers  for  value,  and  may  maintain 

ties    thereto,    is    delivered    without  an   action  thereon  for   the  amount 

consideration  to  another  person,  who  due  to  them  upon  the  debt  which 

pledges  it,  before  its  maturity,  as  it  was  pledged  to  secure." 

collateral  security  for  a  debt  of  his  290  N.  Y.  483. 

279 


§  317.]  PLEDGE    OR    PAWN.  [PART    II. 

pledgee,  had  the  right  to  collect  the  note  when  due,  as  the  loan 
had  not  been  paid,  the  money  collected  remained  as  a  substi- 
tute for  the  note  and  subject  to  plaintiffs'  equities,  the  same  as 
though  the  note  itself  had  remained  uncollected;  that  after  the 
notice,  plaintiffs  stood  as  mere  sureties  for  the  loan,  to  the  ex- 
tent of  their  note,  and  before  resort  was  had  thereto  could  com- 
pel the  application  of  the  proceeds  of  the  securities  belonging 
to  the  brokers,  and  when  sufficient  was  received  therefrom  to 
satisfy  defendant's  claim,  the  proceeds  of  the  note  were  released 
from  the  lien,  and  plaintiffs  were  entitled  to  recover  the  same." 
In  Morris  Canal  <&  Banking  Co.  v.  Lewis^  the  court  say:  "It 
was  held  by  this  court  in  the  case  of  Morris  Canal  &  BanMng 
Co.  V.  Fisher,  1  Stock.  667,  that  the  coupon  bonds  of  an  incor- 
porated company  are  transferable  by  delivery,  so  that  a  hona 
fide  holder  has  a  good  title  to  them.  It  rests  upon  the  faith 
that  such  bonds  are  expressly  designed  to  be  thus  circulated, 
and  to  be  sold  in  the  stock  market  like  public  securities,  and 
that  they  are  universally  so  used.  When  bonds  of  such  char- 
acter, having  several  years  to  run  before  they  become  due,  are 
deposited  as  collateral  security  for  the  paj^ment  of  promissory 
notes  soon  to  mature,  the  fair  presumption  is  that  they  were 
designed  to  be  held  as  a  pledge,  and  were  expected  to  be  sold, 
after  demand  and  due  notice,  like  goods,  chattels,  stocks  and 
public  securities,  in  case  the  debt  for  which  they  were  pledged 
should  be  punctually  paid.  Such  a  deposit  differs  entirely 
from  a  deposit  of  ordinary  bonds,  mortgages,  promissory  notes, 
and  like  choses  in  action,  which,  in  the  absence  of  an  agree- 
ment to  that  effect,  the  creditor  cannot  expose  to  sale,  because 
they  have  no  market  value,  and  it  cannot  be  presumed  it  was 
the  intention  of  the  parties  thus  to  deal  with  them."  The  law 
throws  the  same  safeguards  around  such  a  sale  on  the  foreclos- 
ure of  the  pledge  that  usualh^  protect  the  pledgor  when  the 
pledged  property  is  corporeal.  The  sale  must  be  fair  and  open, 
and  every  reasonable  effort  used  to  obtain  the  best  price  for  the 
property  sold,  and  no  more  property  than  is  necessary  to  dis- 
charge the  pledge  will  be  allowed  to  be  sold.^  And  it  has 
been  held  that  when  several  different  lots  of  stock  have  been 
given  to  secure  the  debt,  they  should  be  sold  separately.* 

1 12  N.  J.  Ch.  333.  3  Mahoney  v.  Caperton,  15  Cal.  31 ;]. 

2  Newsome  v.  Davis,  133  Mass.  343. 

280 


CH.  v.]  EIGHTS    AND    OBLIGATIONS    AFTER    DEFAULT.  [§  318. 

§318.  Compromise. — The  pledgee  of  negotiable  paper  or 
choses  in  action  has  no  right  to  take  a  less  amount  than  is  due 
upon  the  pledged  security  from  the  maker,  or  from  those  liable 
upon  the  security;  and  it  is  a  general  rule  that  if  he  does  so  he 
becomes  liable  for  the  difference  between  the  amount  received 
and  the  face  value  of  the  security,  provided  there  is  no  contract 
allowing  such  a  compromise.^  There  are  cases  where  such  a 
compromise  has  been  upheld,  and  so  it  may  be  said  that  there 
are  exceptions  to  the  rule;  as  where  the  maker  of  the  collateral 
is  insolvent  and  nothing  can  be  collected  upon  the  security  by 
process  of  law,  and  the  compromise  would  be  for  the  best  in- 
terest of  both  parties.  It  was  so  held  in  Exeter  Bank  v.  Gordon? 
The  court  say:  "  It  is  without  doubt  a  well  settled,  general  rule 
that  the  pledgee  has  no  right  in  such  a  case  to  compromise  for  a 
less  amount  than  the  sum  doe  on  the  face  of  the  security.  There 
are,  however,  exceptions  to  this  rule;  but  admitting  for  the 
present  that  the  general  rule  is  applicable  to  this  case,  the  ques- 
tion will  then  be,  has  the  wrongful  act  made  the  bank  account- 
able for  the  whole  sum  due  on  the  note,  or  only  for  the  value 
of  the  note?  There  seems  to  be  no  reason  to  suppose  that  the 
compromise  was  not,  on  the  whole,  highly  advantageous  to  the 
Gordons  and  the  bank;  and  the  complaint  of  this  defendant  is 
not  that  anything  in  fact  is  lost  by  it,  but  that  it  was  made 
without  authority.  If  the  bank  had  wrongfully  taken  the 
note  and  converted  it  to  their  own  use,  they  would  have  been 
answerable  only  for  the  value.  ...  If,  then,  we  follow 
that  analogy  in  this  case,  we  must  hold  that  the  bank  is  liable 
only  for  what  it  received,  if  the  compromise  was  on  the  whole 
advantageous  to  all  concerned." 

A  power  of  sale  after  default  will  not  authorize  the  pledgee 
to  sell  the  security  to  the  maker  for  a  less  sum  than  the  face 
value.  Such  a  sale  would  not  be  considered  as  authorized, 
but  rather  as  a  compromise  and  so  unauthorized.^  The  pledgee 
is  also  protected  in  his  holding  of  the  security,  and  he  cannot 

iZimpleman  v.  Veeder,  98  III.  613;  "B^t  a  pledgee  of  a  promissory  note, 
Wood  V.  Mathews,  73  Mo.  497;  Union  with  a  power  of  sale  in  case  of  de- 
Trust  Co.  V.  Rigdon,  93  111.  458.  fault,  does  not  authorize  the  pledgee 

2  8N.  H.  GO:   Story  on  Bailments,  to  compromise  witli  the  maker  of  tlie 

214;  Bowman  v.  Wood,  15  Mass.  534;  note  and   take   less  than   was   due 

Garlick  v.  James,  13  John.  146.  thereon,  wliere  the  note  was  well  se- 

^Zimpleman  v.  Veeder,  98  111.  613.  cured  and  absolutely  wortli  its  face 

281 


§  319.]  PLEDGE    OR    PAWN.  [PAKT    II. 

be  compelled,  even  by  the  pledgor,  to  accept  a  compromise  of 
the  security,'  or  to  accept  any  other  paper  or  security  in  the 
place  of  it.  The  pledgee  cannot  be  compelled  to  accept  any- 
thing but  money  in  payment  or  satisfaction  of  the  pledged  in- 
debtedness,, in  the  absence  of  a  contract  requiring  him  to  do 
so;  and  an  offer  to  turn  over  to  him  property,  no  matter  if 
it  be  of  greater  value  than  the  amount  of  the  debt,  cannot 
avail  the  pledgor  anj^thing,  nor  is  the  pledgee  bound,  upon 
such  an  offer  being  made,  to  notify  the  debtor  upon  the  col- 
lateral.- On  the  other  hand,  should  the  pledgee  accept  prop- 
erty as  payment  of  the  collateral,  he  would  be  liable  to  account 
to  the  pledgor  for  the  full  face  value  of  the  pledged  security. 
If,  however,  the  debtor  consent  to  a  compromise  that  has  been 
made  by  the  pledgee  with  those  liable  upon  the  collateral, 
then  it  would  be  binding,  and  this  consent  may  be  either  ex- 
press, or  implied  by  the  acts  of  the  bailor. 

In  case  of  an  illegal  compromise  and  surrender  of  the  securi- 
ties, the  pledgor  has  the  option  of  commencing  either  of  two 
actions:  (1)  he  may  sue  the  maker  or  those  liable  upon  the  col- 
lateral and  have  judgment  for  an  amount  equal  to  the  differ- 
ence between  the  amount  due  upon  the  pledged  indebtedness 
and  the  face  value  of  the  security;  or  (2)  he  may  sue  the 
pledgee  and  have  judgment  for  a  like  amount. 

Section  III. 

§  319.  Eights  and  liabilities  of  pledgee  of  stoelvs  and  boiuK 
of  corporations  after  default. —  The  rights  and  liabilities  of 

value.     And  a  sale  by  the  pledgee  of  sum  less  than  is  due    thereon,  but 

a  negotiable  promissory  note  under  which  is  enough  to  pay  the  personal 

a  contract  conferring  power  to  sell  debt,  is  not  a  sale  within  the  mean- 

for  an  amount  much  less  than  the  ing   of  the  power  conferred,   but  is 

face  value  of  the  note,  without  notice  a    compromise   which    renders    the 

to  the  pledgor,  will  not  be  regarded  pledgee   liable   in  an  action  on  the 

as  such  a  sale  as  the  law  requires,  notes  to  the  pledgor  for  the  injury 

but  rather  as  a  compromise  between  thereby  sustained;  and  if  at  the  same 

the  pledgee  and  the  maker  of  the  time  he  sells  other  collaterals  of  the 

note."  same  debtor,  the  whole  transaction 

1  In  Union  Trust  Co.  v.  Rigdon,  93  being  a  tort,  the  pledgor  may  recover 

111.  458,  it  was  held  "  that  the  surren-  for  the  whole." 

der  by  a  pledgee  of  promissory  notes        -'  Rives   v.   M'Losky,  5  Stew.  &  P. 

as  collateral  security  who  has  an  ex-  (Ala.)  330;    Rhinlander  v.  Barrow,  17 

press  written  authority  to  sell    at  John.  (N.  Y.)  538. 
public  auction  or  private  sale  for  a 

283 


ClI.  v.]       EIGHTS    AND    OBLIGATIONS  AFTER   DEFAULT.       [§§  320,  321. 

a  pledgee  of  stocks  and  bonds  of  corporations  after  his  de- 
fault in  not  paying  the  pledged  indebtedness  are  not  dissim- 
ilar to  his  rights  and  liabilities  when  the  pledged  property  is 
corporeal.  He  may  bring  his  action  and  recover  a  judgment 
for  the  indebtedness  and  hold  and  avail  himself  of  the  security 
the  same  as  in  the  case  of  corporeal  property,  or  he  may  fore- 
close the  pledge  by  giving  the  usual  notice  of  sale  at  common 
law  after  demand  of  payment  of  the  debt  secured,  the  law 
following  out  the  theory  already  stated,  namely,  that  this  kind 
of  property  usually  has  a  market  value,  which  can  be  realized 
by  placing  it  upon  sale.  Stocks  and  bonds  are  bought  and  sold 
in  the  market  without  reference  to  their  maturity,  and  so  such 
pledges  may  be  foreclosed  by  public  sale  after  demand  of  pay- 
ment and  due  notice  of  the  sale.^ 

§  320.  Stocks  Iieltl  by  brokers  purchased  on  margins. — 
There  is  an  immense  business  carried  on  in  this  countr}^  through 
brokers,  who,  for  a  certain  agreed  amount  advanced  to  them 
upon  the  price  of  stocks  purchased,  called  margins,  advance 
the  balance  of  the  amount  necessary  to  make  the  purchase  for 
the  customer,  the  broker  holding  the  stock  and  the  margin  as 
his  security  for  the  purchase  price  advanced  by  him,  having 
at  all  times  the  right  to  demand  and  have  paid  to  him  suf- 
ficient further  amounts,  or  margins,  to  at  all  times  make  the 
stocks  sufficient  security  for  the  amount  due  from  the  cus- 
tomer upon  them.  Such  transactions  are  embraced  in  the  law 
of  pledge;  the  broker  being  the  pledgee,  the  customer  for 
whom  he  holds  the  stocks  upon  margins  the  pledgor,  and  the 
amount  remaining  due  upon  the  stocks  for  the  purchase  price 
thereof,  the  pledged  indebtedness.  It  must  be  admitted  that 
the  course  of  business,  and  the  rights  and  liabilities  of  the  par- 
ties, somewhat  differ  in  these  particular  transactions  from  that 
of  the  ordinary  pledging  of  property  as  security  for  the  pay- 
ment of  a  debt,  but  nevertheless  the  questions  involved  must  be 
settled  by  the  rules  of  law  applicable  to  pledgor  and  pledgee. 

§  321.  Custom,  usage  and  course  of  business. —  The  rules 
of  law  fixing  the  rights  and  liabilities  in  this  kind  of  business 
are  the  result  of  the  business  customs  and  usages  which  have 

Und.  &  111.  Cent.  R.  Co.  v.  McKennan,  24  Ind.  02;  Merchants' Nat.  Bank 
V.  Thompson,  133  Mass.182. 

283 


g  o2'2.]  PLEDGE    OR    PAWN.  [PAET    II. 

been  adopted  and  acquiesced  in  by  brokers  and  customers;  the 
known  and  recognized  rules  and  regulations  of  boards  of  trade 
and  stock  exchanges,  the  agreements  of  the  parties  expressed 
as  well  as  implied  by  the  long-continued  and  well-understood 
course  of  business.  The  customer,  no  doubt,  has  the  right  to 
redeem  the  stock  by  paying  to  the  broker  the  amount  due 
upon  it,  and  in  such  case  the  broker  would  be  bound  to  de- 
liver to  him  the  certificate  of  the  stock  purchased,  and,  in  case 
of  failing  or  refusing  to  do  so,  would  be  subject  to  the  usual 
liability  of  a  bailee  in  such  cases;  and  this  right  to  redeem,  as 
in  other  cases,  exists  so  long  as  the  pledge  remains  unfore- 
closed. 

§322.  Foreclosure  of  the  pledge  where  stocks  are  held 
on  margins. —  The  foreclosure  of  the  pledge  differs  somewhat 
from  the  foreclosure  of  the  ordinaiy  pledge  where  the  property 
is  corporeal,  or  where  it  is  stocks  and  bonds  of  corporations, 
already  noticed.  Here  the  parties  are  largely  governed  by  cus- 
toms, rules  and  regulations  that  have  become  known  and  estab- 
lished, and  have  been  recognized  and  agreed  to  at  the  time  of  the 
purchase,  and,  by  the  very  fact  of  the  purchase,  are  understood 
between  the  parties  to  have  been  agreed  to.  The  margins,  as  we 
have  seen,  have  been  paid  to  the  broker  from  time  to  time  to  keep 
his  security  good  for  the  amount  advanced.  These  amounts 
or  margins  must,  of  course,  be  reasonable,  but  are  fixed  by  the 
broker  and  must  be  paid  by  the  customer  after  reasonable  no- 
tice. There  is  no  fixed  time  when  the  whole  amount  due  for 
purchase  price  shall  become  due  and  payable;  it  is  presumed 
that  at  some  time  the  stocks  are  to  be  paid  for,  and  that  time 
may  be  said  to  be  within  a  reasonable  time,  and  at  that  time 
the  broker  has  the  right  to  demand  that  the  business  be  closed. 
Should  the  customer  fail  upon  reasonable  notice  to  pay  the 
margins  demanded,  or  fail  after  a  reasonable  time,  and  upon 
demand  and  reasonable  notice,  to  pay  the  amount  due  the  broker 
for  advances,  in  either  case  the  broker  may  sell  the  stocks  in 
the  market  at  their  then  market  value  and  close  up  the  account, 
accounting  to  the  customer  for  the  amounts  received  upon  the 
sale  and  for  the  margins  which  have  been  paid,  if  he  can  do 
so,  after  reserving  for  himself  the  full  amount  advar  .v:d  with 
interest  and  commissions.    No  public  sale  is  required.    Custom 

284 


CH.  v.] 


EIGHTS    AND    OBLIGATIONS    AFTER   DEFAULT. 


[§  323. 


and  usage  and  the  general  and  usual  course  of  trade  has  fixed 
and  settled  this  as  the  legal  foreclosure,  and  after  such  sale,  if 
it  is  free  from  fraud,  there  is  no  redemption.^ 

Section  IV^. 

§  323.  The  rights  and  liabilities  of  the  pledgor  after  de- 
fault.—  The  pledgor  has  a  right  at  any  time  before  foreclosure 
of  the  pledge  to  redeem  his  property  from  the  lien  thereof  by 
paying  the  debt  or  obligation,  or  the  amount  due  upon  the  pledge, 
or,  in  case  of  the  refusal  of  the  pledgee  to  accept  that  amount, 
by  tendering  to  him  the  amount  due.  But  if  the  pledgor 
should  fail  to  do  this,  and  by  reason  of  his  default  in  not  pay- 
ing the  debt  for  which  the  property  was  pledged,  when  due, 
the  pledgee  could  legally  foreclose  the  pledge  and  sell  the 
property.  In  this  case  the  pledgor's  rights  and  interests  in 
the  pledged  property  would  be  gone,  and  he  would  have  no 
further  right  of  redemption.  But  in  order  to  cut  off  the  pledg- 
or's right  to  redeem,  the  foreclosure  must  be  legal  and  regular, 
otherwise  the  pledgor  would  have  a  right  of  action  as  for  con- 


1  In  Denstan  v.  Jackson,  106  111.  733, 
it  was  held:  "  In  the  absence  of  any 
contract  between  a  broker  and  cus- 
tomer with  regard  to  notice  of  sale, 
and  of  any  rule  of  the  board  of  trade, 
the  common  law  would  govern  re- 
garding reasonable  notice  to  the  cus- 
tomer to  make  his  margin  good  in 
order  to  justify  the  sale."  In  Gra- 
man  v.  Smith,  81  N.  Y.  25:  "Where 
stocks  are  held  by  a  broker  for  a  cus- 
tomer on  a  margin,  it  is  a  part  of  the 
contract  that  if  the  stock  depi'eciate 
the  margin  shall  be  kept  good  on  de- 
mand, and,  upon  failure  to  do  so,  the 
stocks  may  be  sold  upon  reasonable 
and  customary  notice;  but  where  the 
stock  depreciates  and  a  call  for  ad- 
ditional margin  is  made  and  com- 
plied with,  and  afterwards  a  second 
call  is  mada  which  is  not  complied 
with,  and  the  broker  sells  the  stock 
without  notice,  the  sale  is  irregular 
and  conal'.i^Utes  a  conversion."  In 
Hanks  v.  Drake,  49  Barb.  186:  "The 
notice  required  in  the  case  of  a  sale 


of  pledged  stock  as  security  for  the 
payment  of  money  advanced  thereon 
is  not  required  in  the  case  of  a  pur- 
chase by  brokers  as  agents  advanc- 
ing money  therefor,  but  the  brokers 
must  give  the  customer  notice  that 
his  margin  is  diminished  and  that 
they  require  a  further  margin,  and  a 
reasonable  time  must  be  given  him 
in  which  to  comply  before  the  stock 
can  be  sold."  Worthington  v.  Tor- 
mey,  34  Md.  182.  The  New  York 
court  of  appeals  has  held:  "The  rela- 
tion existing  between  a  customer 
and  a  broker  with  reference  to  stocks 
purchased  by  the  bi-oker  on  a  margin 
for  the  customer  is  that  of  pledgor 
and  pledgee,  and  if  the  broker  sells 
the  stock  without  demanding  addi- 
tional margin  or  giving  the  customer 
reascrtiable  notice  of  the  sale,  it  will 
be  wrongful  and  operate  as  a  con- 
version." Gillett  v.  Whiting,  120 
N.  Y.  402;  Baker  v.  Drake,  66  N.  Y. 
518,  23  Am.  Rep.  80. 


285 


§§  324,   325.]  PLEDGE    OR    PAAVN,  [PART    II. 

version  of  the  property,  and  might,  even  after  such  foreclosure, 
tender  to  the  pledgee  the  amount  due  and  recover  the  pledged 
property. 

§  324.  The  pledgor  may  waive  irregularity. —  The  pledgor 
may,  however,  by  express  or  implied  ratification  of  the  fore- 
closure sale,  or  otherwise,  waive  the  irregular  or  illegal  pro- 
cedure of  the  pledgee.  As,  for  example,  where  the  pledgee 
sold  the  property  without  giving  the  proper  notice;  or  where 
he  sold  it  at  private  sale,  having  no  authority  to  do  so,  and  the 
pledgor  accepts,  after  such  irregularities,  the  money  received, 
and  appropriates  it  to  his  own  use  after  knowing  all  the  facts; 
or  where  the  pledgee  stood  by  and  witnessed  the  illegal  or  ir- 
regular disposition  of  the  propertj^^  on  foreclosure  of  the  pledge, 
allowing  hona  fide  purchasers  to  buy  the  property,  making  no 
objection,  in  such  cases  the  pledgor  would  be  estopped  from 
taking  advantage  of  the  irregular  or  illegal  proceeding.^ 

§  325.  Redemption  in  equity. —  Equity  will  not,  ex- 
cept in  very  unusual  cases,  take  jurisdiction  and  decree  a  right 
of  redemption  in  this  class  of  cases,  for  the  reason  that  the 
legal  remedy  is  generall}^  adequate  and  gives  full  and  complete 
relief.  The  pledgor  may,  upon  satisfying  the  pledged  indebted- 
ness, or  offering  to  do  so  by  legally  tendering  the  required 
amount,  recover  the  pledged  property  by  an  action  of  replevin, 
or  its  value  in  an  action  of- trover  in  case  the  pledgee  should 
refuse  to  deliver  the  property.  The  legal  title  to  the  propert}', 
it  will  be  remembered,  is  always  in  the  pledgor;  it  has  only 
been  incumbered  by  a  special  lien  or  right  of  possession,  which 
is  satisfied  and  removed  when  the  pledged  indebtedness  is  sat- 
isfied, so  that  the  pledgor  then  has  the  title  and  right  to  pos- 
session unincumbered,  and  the  law  will  give  him  the  propertv. 
In  this  respect  a  pledge  differs  from  a  mortgage.  By  the  mort- 

1  Hamilton  v.  State  Bank,  23  Iowa,  the  sale  and  did  not  object  to  it.  but 

306:  Galigher  v.  Jones.  129  U.  S.  193.  made  a  bid,  and  after  the  sale  the 

•' And  a  sale  of  a  pledge  by  a  pledgee  pledgor,  with  the  pledgee  and  pur- 

cannot   be  avoided   on   the  ground  chaser,  joined  in  celebration  of  the 

that  no  demand  was  made  on  the  sale,  and  the  sale  was  held  in  a  room 

pledgor  for  payment,  and   that  the  which,  though  generally  open  only 

pledgee  did  not  give  the  pledgor  any  to  members  of  the  board   of  trade, 

notice  of  the  time  and  place  of  sale,  was  open  to  the  public  at  the  time 

and  that  the  sale  was  not  at  a  public  of  the  sale." 
auction,  where  the  pledgor  attended 

286 


CH.  v.]  RIGHTS    AND    OBLIGATIONS    AFTER    DEFAULT.      [§§  326-27. 

gage,  the  property  mortgaged  is  conveyed  subject  to  a  defeas- 
ance clause,  while  in  case  of  a  pledge  the  title  remains  in  the 
pledgor;  and  so,  even  where  by  the  agreement  pledging  the 
property  it  is  stipulated  that  upon  failure  to  pay  the  indebted- 
ness upon  a  certain  due  day  the  property  shall  become  the 
property  of  the  pledgee  absolutely,  this  agreement,  being  void, 
will  not  affect  the  right  of  the  pledgor  to  redeem  at  any 
time  after  the  due  day  and  prior  to  a  legal  foreclosure  of  the 
pledge;  and  in  such  case  the  remed}^  at  law  is  adequate.^ 

§  326.  Equity  in  some  cases  will  take  jurisdiction. — ^If 
the  redemption  involves  a  long  and  difficult  accounting,  such 
an  accounting  as  belongs  to  the  jurisdiction  of  a  court  of  equity, 
the  equitable  remedy  might  be  invoked;  or  if  some  special  rea- 
son existed,  as  that  a  discovery  was  wanted.'  So  in  case  cer- 
tificates of  stock  have  been  transferred  to  the  pledgee  upon 
the  books  of  the  company,  the  pledged  property  thus  having 
passed  to  the  pledgee,  he  having  the  legal  title  and  refusing  to 
reconvey,  a  court  of  equity  will  decree  a  reconveyance  upon 
the  pledge  being  satisfied;  for  in  such  case  the  legal  remedy 
would  not  be  adequate.^ 

§327.  Accounting  for  the  pledged  property.  —  Whether 
the  property  pledged  be  corporeal  or  incorporeal,  as  promissory 
notes,  bonds,  mortgages  or  negotiable  paper,  or  choses  in  ac- 
tion, or  whether  it  be  bonds  or  stocks  of  corporations,  or  stocks 
held  upon  margins,  when  the  pledged  indebtedness  is  dis- 
charged or  satisfied,  it  becomes  the  duty  of  the  pledgee  to 
faithfully  and  fairly  account  for  all  the  proceeds  of  the  pledged 
property,  and  all  the  moneys  or  benefits  that  he  has  received 
on  account  of  the  pledge,  and  to  redeliver  to  the  pledgor  all 
that  remains  in  his  hands  which  has  not  been  legally  disposed 
of;  for  when  the  object  of  the  pledge  has  been  carried  out 
and  has  ceased  to  operate,  the  whole  beneficial  interest  in  the 
pledged  security  vests  absolutely  in  the  pledgor,  and  it  becomes 
the  duty  of  the  pledgee  to  redeliver  the  pledged  property  or 
to  account  for  it. 

1  Genet  v.  Howland,  45  Barb.  (N.  Y.)  Co.,  50  N.  H.  57;  Durant  v.  Einstein, 

~)G0;  Doak  v.  Bank,  6  Ired.  (N.  C.)309.  35  How.  Pr.  (N.  Y.)  233;    Beatty  v. 

-Story  on  Eq.  Jur.,  sec.  1033;  Has-  Silveston,  3  Nev.  338. 
brouckv.Vandervoort,  4Sand.(N.  Y.)        ^Bryson   v.    Raynor,   35  Md,    243 

74;  Kemp  v.  Westbrook,  1  Ves.  378;  Hasbrouck  v.  Vandervoort,  4  Sand. 

White  Mt.  R.  Co.  v.  Bay  State  Iron  (N.  Y.)  74. 

287 


§  328.]  PLEDGE   OR   PAWN.  [PART    II. 

§328,  Termiuation  of  the  relation. —  The  pledge  may  be 
terminated  (1)  by  redelivery  of  the  property,  (2)  by  payment 
of  the  debt  or  performance  of  the  obligation,  (3)  by  tender  of 
the  amount  due,  (4)  by  loss  or  destruction  of  the  pledged  prop- 
erty, (5)  by  sale  by  the  pledgee  or  by  his  misuse  of  the  property, 
(6)  by  merger,  and  (T)  at  the  pledgor's  option,  by  conversion 
by  the  pledgee. 

These  several  ways  of  terminating  the  relation  have  been 
more  or  less  discussed  and  we  need  but  call  attention  to  them 
in  this  connection. 

(1)  By  redelivery  of  the  jproperty. —  Possession  of  the  prop- 
erty is  essential  to  a  valid  pledge ;  and  while,  as  betAveen  the 
pledgor  and  pledgee,  the  pledged  relation  might  not  be  extin- 
guished by  a  temporary  redelivery  of  the  property  as  between 
T)onafide  purchasers  or  creditors  of  the  bailor,  the  pledge  would 
be  at  an  end.  The  parties,  of  course,  could  terminate  the  rela- 
tion hy  an  agreement  to  that  effect. 

(2)  By  payment  of  the  deht. —  This  has  been  fully  discussed. 
The  pledge  only  exists  for  the  purpose  of  securing  the  payment 
of  the  debt  or  performance  of  the  obligation,  and  when  that  is 
done  it  goes  without  saying  that  the  lien  pledged  could  have 
no  further  existence. 

(3)  Tender  of  the  amount  due. —  Tender  of  the  amount  due, 
and  a  demand  for  the  redelivery  of  the  property,  would,  as  we 
have  seen,  work  the  same  result  as  a  payment  or  performance 
of  the  obligation, 

(4)  By  loss  or  destruction  of  the  jpledged  property. —  In  such 
case  the  pledge  or  lien  of  the  property  would  cease,  because 
there  would  be  no  subject-matter  to  which  it  could  attach. 
The  question  of  liability  might  be  important.  The  bailee  is 
bound,  as  we  know,  to  exercise  ordinary  diligence  in  the  care 
of  the  property;  so  if  it  was  lost  through  his  fault,  the  pledgor 
would  be  entitled  to  a  release  of  the  indebtedness  to  the  extent, 
at  least,  of  the  value  of  the  property;  and  if  the  value  of  the 
property  should  exceed  the  amount  of  the  indebtedness,  to  a 
judgment  for  the  excess.  If  the  loss  were  not  occasioned  by 
the  fault  of  the  bailee,  or  if  it  were  occasioned  by  the  fault  of 
the  bailor,  then  the  debt  would  in  no  waj'-  be  extinguished  by 
reason  of  the  loss. 

288 


CH.  v.]  EIGHTS    AND    OBLIGATIONS    AFTER   DEFAULT.  [§  328. 

(5)  By  sale  of  the  pledged  property  or  hy  his  misuse  of  it. —  If 
the  pledgee  without  authority  undertakes  to  sell  the  pledge  and 
thus  deprive  the  pledgor  of  it,  or  if  he  misuses  it,  thus  violating 
the  object  of  the  pledge  and  the  implied  agreement,  it  would 
be  held  to  be  a  conversion  upon  his  part  and  the  lien  of  the 
pledge  would  be  extinguished,  and  the  pledgee  in  such  case 
Avould  be  liable  for  the  damage  occasioned  by  such  a  conversion. 

(6)  By  merger. —  Where  the  pledgee  purchases  the  title  of 
the  pledged  property  from  the  pledgor,  he  would  own  both 
the  title  and  the  right  to  the  possession,  and  the  lien  of  the 
pledge  would  merge  in  the  title  thus  purchased  by  the  pledgee. 

(7)  By  conversion. —  Conversion  may  be  the  result  of  the 
illegal  procedure  of  the  bailee.  So  long  as  the  debt  remains 
unpaid  and  is  not  barred  by  the  statutes  of  limitation,  and  the 
bailee  has  not  been  guilty  of  a  misuse  of  the  property,  or  of 
some  of  the  acts  which  would  terminate  the  lien,  there  can  be 
no  conversion. 

"When  for  any  reason  the  lien  of  the  pledge  has  been  extin- 
guished, it  is  the  duty  of  the  pledgee  to  redeliver  the  property 
pledged,  or  the  balance  remaining  in  his  hands,  and  he  cannot 
avoid  this  duty  unless  it  transpires  that  the  pledgor  was  not  the 
real  owner,  and  in  that  case  he  must  deliver  it  to  the  real  owner. 
Should  he  fail  upon  demand  to  so  redeliver  the  property  or  to 
account  for  it,  the  pledgor,  or  the  real  owner,  could  at  his  option 
bring  an  action  to  recover  the  property  or  its  value. 
19  289 


J 


PAET  THIED 


INNKEEPERS  AND  BOARDING-HOUSE 
KEEPERS 


CHAPTER  I. 

INNS  AND  INNKEEPERS. 


329.  An  inn. 

330.  Who  are  innkeepers. 

331.  The  test. 


^  332.  Some  essential  characteristics. 
333.  Restaurants  and  cafes. 


Thus  far  we  have  discussed  ordinary  bailments,  that  is,  that 
class  of  bailments  which  falls  within  the  ordinary  liability  that 
attaches  to  bailees.  We  are  now  to  discuss  one  of  the  classes 
of  extraordinary  bailments,  i.  e.^  a  bailment  where  the  liability 
which  attaches  is  extraordinary. 

§  329,  An  inn. —  While  the  origin  and  history  of  the  inn 
would  no  doubt  be  of  very  great  interest  and  profit  to  the 
student,  we  cannot  expect  to  give  here  in  detail  more  than  may 
be  deemed  sufficient  to  help  us  to  comprehend  the  reasons  for 
the  extraordinary  rules  of  liabilit}'  that  the  law  has  attached 
to  the  innkeeper,  in  its  efforts  to  surround  the  guest  with  what 
was,  in  the  early  days  at  least,  deemed  a  necessary  protection. 

An  inn  has  been  defined  to  be  "a  public  house  for  entertain- 
ment for  all  who  choose  to  visit  it."  In  discussing  this  subject 
our  thoughts  are  at  once  occupied  with  the  history  of  the  old 
English  inns  and  the  French  hostelries  so  prominent  in  tlie 
earlier  history  of  travel  and  entertainment  in  those  countries. 
We  remember  the  descriptions  of  the  scenes  of  revelry  and 
good  cheer,  and  often  the  danger,  the  riot  and  robbery.  The 
smoking  mugs  of  hot-brewed  ale,  with  hot  brandy  and  water 
quaffed  amid  the  curling  tobacco  smoke  of  the  bar-room,  help 
to  set  the  picture.  Such  scenes  were  seldom  if  ever  interrupted 
except  by  the  arrival  of  a  cavalcade  of  travelers  making  their 

291 


i 


§  329.]  INNKEEPERS BOARDING-HOUSE    KEEPERS.        [PART    III. 

wa}'^  through  a  dangerous  and  almost  roadless  country,  or  the 
winding  of  the  blasts  from  the  trumpet  of  the  coach-driver  as 
he  approached  the  inn  where  passengers,  travelers,  servants 
and  animals  were  to  be  refreshed  and  cared  for.  It  was  the 
place  where  "everything  needed  for  the  traveler  on  his  way  " 
was  supposed  to  be  kept  and  furnished  for  hire,  whether  it  be 
for  man  or  beast;  so  within  the  curtilage  of  the  inn  were  found 
not  only  the  house  that  sheltered,  and  warmed,  and  furnished 
entertainment  for  the  guest  and  his  servants,  but  the  yards,, 
barns  and  stables  w^here  the  animals  and  vehicles  that  brought 
the  guests  were  cared  for.  The  inn  comprised  all  these,  and 
all  these  were  said  to  be  the  inn. 

The  definition  in  Lacey  v.  TJiomi^mn  ^  by  Best,  J.,  gives  us 
somethino;  of  an  idea  of  the  English  inn:  "A  house,  the  owner 
of  which  holds  out  that  he  will  receive  all  travelers  and  so- 
journers who  are  willing  to  pay  a  price  adequate  to  the  sort 
of  accommodation  provided,  and  who  come  in  a  situation  in 
which  they  are  fit  to  be  received."  And  the  definition  of 
Bailey,  J.,  found  in  the  same  case:  "A  house  where  a  traveler 
is  furnished  with  everything  which  he  has  occasion  for  while 
on  his  way."  These  definitions,  it  will  be  noticed,  include  both 
solids  and  fluids,  whatever  the  traveler  "  has  occasion  for 
while  on  his  wa}'',"  whether  it  be  that  is  desired  by  him  to  eat 
or  to  drink.  So  it  would  seem  that  it  was  essentially  a  place 
where  not  only  provisions  were  furnished,  but  where  wines, 
spirituous  or  malt  liquors  were  provided  for  those  who  patron- 
ized the  inn.  And  not  only  this,  but  the  inn  of  greatest  com- 
pleteness must  furnish,  as  well,  entertainment  for  the  horses  or 
animals  of  the  guest  as  well  as  for  the  guest  himself.  It  need 
not  be  said  that  long  since  it  has  been  held  that  very  many  of 
these  essentials  of  the  earlier  inn  are  not  necessary  or  fur- 
nished in  the  hotel  or  public  bouse  for  the  entertainment  of 
travelers  and  guests  of  modern  days. 

A  very  interesting  history  of  the  inns  of  the  earlier  days  is- 
given  in  the  opinion  of  Mr.  Justice  Daly  in  the  case  of  Crom- 
^oell  V.  Stevens,  a  New  York  case.^  He  says:  .  .  .  "The 
word  is  of  French  origin,  being  derived  from  '•hostel^  and 
more  remotely  from  the  Latin  word  ■*  Jiospes^  a  word  having 
a  double  signification,  as  it  was  used  by  the  Eomans  both  to 

1 3  B,  &  Aid.  283;  5  Eel.  285.  22  Daly,  15. 

292 


I 


on.  I.]  INNS    AND    INNKEEPERS.  [§  329. 

denote  a  stranger  who  lodges  at  the  house  of  another,  as  well 
as  the  master  of  the  house  who  entertains  travelers  or  guests. 
Among  the  Romans  it  was  a  universal  custom  for  the  wealth- 
ier classes  to  extend  the  hospitality  of  their  house,  not  only  to 
their  friends  and  connections  when  they  came  to  the  city,  but 
to  respectable  travelers  generally.  They  had  inns,  but  they 
were  kept  by  slaves,  and  were  places  of  resort  for  the  lower 
orders,  or  for  the  accommodation  of  such  travelers  as  were  in 
a  condition  to  claim  the  hospitality  of  the  better  classes.  On 
either  side  of  the  spacious  mansions  of  the  wealthy  patricians 
were  smaller  apartments  known  as  ^hospithim,^  or  places  for 
the  entertainment  of  strangers,  and  the  word  hospes  was  a 
term  to  designate  the  owner  of  such  a  mansion,  as  well  as  the 
guest  whom  he  received.  The  custom  of  the  Romans  pre- 
vailed in  the  earlier  part  of  the  middle  ages.  From  the  fifth 
to  the  ninth  century  traveling  was  difficult  and  dangerous. 
There  was  little  security  except  within  castles  or  walled  towns. 
The  principal  public  roads  had  been  destroyed  by  centuries  of 
continuous  war,  and  such  thoroughfares  as  existed  were  in- 
fested by  roving  bands  who  lived  exclusively  by  plunder. 

"In  such  a  state  of  things  there  could  belittle  traveling,  and 
consequently  the  few  inns  to  be  found  were  rather  dens  to 
which  robbers  resorted  to  carouse  and  divide  their  spoils  than 
places  for  the  entertainment  of  travelers.  The  effect  of  a  con- 
dition of  society  like  this  was  to  make  hospitality  not  only  a 
social  virtue  but  a  religious  duty,  and  in  the  monasteries  and 
in  all  the  great  religious  establishments  provision  was  made 
for  the  gratuitous  entertainment  of  wayfarers  and  travelers. 
Either  a  separate  building  or  an  apartment  within  the  mon- 
astery was  devoted  exclusively  to  this  purpose,  which  was  in 
charge  of  an  officer  called  the  hostler,  who  received  the'traveler 
and  conducted  him  to  this  apartment,  which  was  fitted  up  with 
beds,  where  he  was  allowed  to  tarry^or  two  days,  and  to  have 
his  meals  in  the  refectory,  while,  if  he  journeyed  upon  horse- 
back, provender  was  provided  by  the  hostler  for  his  beast  in 
the  stables.  In  many  countries  this  apartment,  or  guest  hall, 
of  a  monastery  retained  the  original  Latin  name  of  hospitium, 
but  in  France  the  word  was  blended  with  hospes  and  changed 
into  hospice^  and  it  afterward  underwent  another  change.  As 
civilization  advanced,  and  the  nobility  of  France  deserted  their 

293 


§  329,]  INNKEEPERS BOARDING-HOUSE    KEEPERS.       [PART    III. 

strong  castles  for  spacious  and  costly  residences  in  the  towns, 
they  erected  their  mansions  upon  a  scale  sufficiently  extensive 
to  enable  them  to  discharge  this  great  duty  of  hospitality,  as 
is  still,  or  was  very  recently,  the  custom  among  the  nobility 
and  wealthier  classes  in  Eussia,  and  in  some  of  the  northern 
countries  of  Europe.  Borrowing,  by  analogy,  from  an  exist- 
ing word,  and  to  distinguish  it  from  the  guest  house  of  the 
monastery,  every  such  great  house  or  mansion  was  called 
a  hostel^  and  by  the  mutation  and  attrition  to  which  these 
words  are  subject  in  use,  the  's'  was  gradually  dropped  from 
the  word,  and  it  became  hotel.  As  traveling  and  inter- 
course increased,  the  duty  upon  the  nobility  of  entertaining 
respectable  strangers  became  too  onerous  a  burden,  and  estab- 
lishments in  which  this  class  of  persons  could  be  entertained 
by  paying  for  their  accommodation  sprung  up  in  the  cities, 
towns,  and  upon  the  leading  public  roads,  which,  to  distinguish 
them  from  the  great  mansions  or  hotels  of  the  wealthy,  and  at 
the  same  time  to  denote  that  they  were  superior  to  the  aiiberge 
or  cabaret,  were  called  hosteleries,  a  name  which  has  been  in 
use  in  France  for  several  centuries,  and  is  still  in  use  to  some 
extent  as  a  common  term  for  inns  of  the  better  class,  while 
the  word  '  hotel,'  in  France,  has  long  ceased  to  be  confined  to 
its  original  signification,  and  has  become  a  word  of  a  most  ex- 
tensive meaning. 

"  The  Saxon  word  inn  was  employed  to  denote  a  house  where 
strangers  or  guests  were  entertained,  down  to  the  time  of  the 
Norman  invasion;  and  under  the  Xorman  rule  it  was  in  the 
popular  tongue  the  word  for  the  town  houses  in  which  great 
men  resided  when  they  were  in  attendance  on  court,  several  of 
which  became  legal  colleges  under  the  well  known  title  of 
'  inns  of  court.'  In  all  legal  proceedings,  however,  and  wher- 
ever the  Xorman  French  was  spoken,  the  word  hostel  was  the 
term  for  all  such  establishments.  The  places  where  entertain- 
ment could  be  procured  for  a  compensation,  to  distinguish  them 
from  the  inns  or  great  houses  where  it  was  furnished  gratui- 
tously, were  called  in  English  common  inns;  while  in  Norman 
French,  by  a  change  analogous  to  that  which  had  occurred  in 
France,  they  were  first  called  hosteleries,  and  afterward  hostries. 
To  'host'  was  to  put  up  at  the  inn;  and  'hostler,'  before 
referred  to  as  the  title  of  the  officer  in  the  monastery  who  was 

294 


CH.  I.]  INNS   AND   INNKEEPEKS.  [§  329. 

charged  with  the  entertainment  of  guests,  was  the  Norman 
word  for  innkeeper,  and  was  in  use  until  about  the  time  of 
Elizabeth,  when,  the  keeping  of  horses  at  livery  becoming  a 
distinct  occupation,  it  was  the  term  for  the  keeper  of  a  livery- 
stable. 

"  It  appears  from  a  note  of  Malone,  referred  to  in  Todd's  edi- 
tion of  Johnson's  Dictionary,  that  the  word  '  hotel '  came  into 
use  in  England  by  the  general  introduction  in  England,  after 
1760,  of  the  kind  of  establishment  that  was  then  common  in 
Paris,  called  an  hotel  garni,  a  large  house,  in  which  furnished 
apartments  were  let  by  the  day,  week  or  month.  In  Barclay's 
Dictionary  (1872),  in  the  first  edition  of  Walker  (1791),  and  in 
Sheridan's  Dictionary  (1795),  hotel  is  given  as  the  proper  pro- 
nunciation of  hostel,  an  inn;  and  in  the  dictionaries  of  Jones 
(1798)  and  of  Perry  (1805)  it  is  incorporated  as  an  English 
word,  and  is  defined  in  the  latter  to  be  'a  lodging-house  for 
the  accommodations  for  gentlemen  and  genteel  families.' 
Todd  (1814)  defines  it  to  be  'a  lodging-house  for  the  accom- 
modation of  occasional  lodgers,  who  are  supplied  with  apart- 
ments hired  by  the  night  or  week.'  The  definition  given  by 
Knowles  (1835)  is  simply  'an  inn;'  Beid  (1845),  'an  inn  or  a 
lodging-house;'  Boag  (1848),  'an  inn;'  and  by  Dr.  Latham^ 
in  his  edition  of  Johnson's  Dictionary,  "  an  inn  of  a  superior 
kind.'    .     .     . 

"  It  is  to  be  deduced  from  the  origin  and  history  of  the  word, 
and  the  exposition  that  has  been  given  of  it  by  English  and 
American  lexicographers,  that  a  hotel,  in  this  country,  is  what 
in  France  was  known  as  a  hostelerie,  and  in  England  as  a  com- 
mon inn  of  that  superior  class  usually  found  in  cities  and  large 
towns.  A  common  inn  is  defined  by  Bacon  to  be  '  a  house  for 
the  entertainment  of  travelers  and  passengers  in  which  lodg- 
ing and  necessaries  are  provided  for  them  and  for  their  horses 
and  attendants.'  .  .  .  But  a  more  practical  idea  of  what  was 
understood  at  the  common  law  as  common  inns  may  be  gath- 
ered from  Hollingshed's  description  of  them  as  they  existed  in 
the  days  of  Elizabeth.  '  Every  man,'  says  that  quaint  chron- 
icler, '  may  in  England  use  his  inn  as  his  own  house,  and  have 
for  his  monie  how  great  or  how  little  varitie  of  vittals  and 
whatsoever  service  himself  shall  think  fit  to  call  for.  If  the 
traveler  have  a  horse,  his  bed  doth  cost  him  nothing,  but  if  he 

295 


§  330.]  INNKEEPERS BOARDING-HOUSE    KEEPERS.        [PAKT    III. 

go  on  foot,  he  is  sure  to  pay  a  penny  for  the  same.  Each  comer 
is  sure  to  be  in  clean  sheets  wherein  no  man  hath  lodged  since 
they  came  from  the  laundress,  or  out  of  the  water  wherein  they 
were  washed.  Whether  he  be  horseman  or  footman,  if  his 
chamber  be  once  appointed,  he  may  carry  the  key  with  him  as 
of  his  own  house  as  long  as  he  lodgeth  there.  In  all  our  inns 
we  have  plenty  of  ale,  biere  and  sundrie  kinds  of  wine;  and 
such  is  the  capacitie  of  some  of  them  that  they  are  able  to  lodge 
two  hundred  or  three  hundred  persons  and  their  horses  at  ease, 
and  with  very  short  warning  (to)  make  such  provision  for  their 
diet  as  to  him  that  is  unacquainted  withall  may  seem  to  be  in- 
credible.' And  another  observer  (Fynes  Moryson),  writing 
before  1614,  adds:  'If  the  traveler  eats  with  the  host  or  at  the 
common  table  his  meals  cost  him  sixpence,  and  in  some  places 
fourpence;  but  if  he  will  eat  in  his  chamber  he  commands  what 
meat  he  will,  and  the  kitchen  is  open  to  him  to  order  the  meat 
to  be  dressed  as  he  likes  best.'  "  This  perhaps  is  shfficient  as  to 
the  early  history  of  the  inn. 

§  330.  Who  are  innkeepers. —  Judge  Cooley  in  his  work  on 
Torts  adopts  the  following  definition :  "An  innkeeper  is  one  who 
holds  Himself  out  to  the  public  as  ready  to  accommodate  all 
comers  with  the  conveniences  usually  supplied  to  travelers  on 
their  journey."  ^ 

In  Hoivth  V.  FranTdin  the  court  defines  the  innkeeper  to  be 
"  one  who  holds  himself  out  to  the  public  as  engaged  in  the 
business  of  keeping  a  house  for  the  lodgment  and  entertain- 
ment of  travelers,  their  horses  and  attendants  for  reasonable 
compensation."^ 

Some  fine  distinctions  have  arisen  and  occupied  the  atten- 
tion of  the  courts  as  to  who  are  innkeepers.  Every  person  who 
furnishes  to  the  traveler  entertainment  for  himself  and  attend- 
ants is  not  an  innkeeper.  One  who  occasionally  entertains 
travelers  for  compensation  when  it  suits  his  pleasure,  and  who 
does  not  hold  himself  out  as  the  keeper  of  a  house  for  the  ac- 
commodation of  the  traveling  public,  is  not  an  innkeeper.  For 
example,  persons  whose  houses  are  situated  along  the  public 
roads  of  the  country,  as  farmers  living  upon  farms  who  occa- 
sionally or  even  frequently  take  in  and  accommodate  travelers 
and  receive  compensation  therefor,  are  not  innkeepers,  nor  are 

1  Cooley  on  Torts  (2d  ed.),  757.  2  20  Tex.  79a 

296 


i 


CH.  I.]  INNS    AND    INNKEEPERS.  [§§  331-333. 

they  liable  as  such,  nor  are  keepers  of  restaurants  and  eating- 
houses,  or  those  giving  entertainment  only  occasionally,  or  per- 
sons keeping  lodging  and  boarding  houses,  or  sleeping-car  and 
steamship  companies,  for  these  do  not  hold  themselves  out  as 
ready  to  furnish  accommodation  for  all  comers;  and  it  has  been 
held  that  keepers  of  hotels  at  summer  resorts  and  watering 
places  are  not  in  a  strict  sense  innkeepers. 

§331,  The  test. —  The  test  maybe  seen  in  the  definition, 
"  one  who  holds  himself  out  to  the  public  as  ready  to  accom- 
modate all  comers  with  the  conveniences  usually  supplied  to 
travelers  on  their  journej^s;  "  in  other  words,  he  who  solicits 
the  public  to  come  to  his  inn  for  entertainment;  who  proclaims 
by  word  or  action  that  he  will  entertain  all  who  come  who 
will  pay  the  price  for  the  entertainment  and  are  fit  to  be  en- 
tertained. It  may  be  said  to  be  a  public  employment,  and  this 
is  a  characteristic  distinguishing  the  innkeeper  from  a  mere 
boarding-house  keeper;  so  that  among  the  essential  char- 
acteristics which  constitute  the  place  an  inn  is  the  supplying 
to  the  traveling  public  needed  entertainment. 

§  333.  Some  essential  characteristics. —  The  accommoda'- 
tion  of  the  guests  of  the  inn  is  the  principal  object  for  which 
the  inn  is  kept;  to  furnish  food,  lodging,  entertainment  and 
care  as  the  public  demand.  In  Leiois  v.  Hitchcock  ^  the  court 
say:  "A  cotfee-house,  or  a  mere  eating-house,  is  not  an  inn. 
To  constitute  an  inn  there  must  be  some  provision  for  the 
essential  needs  of  a  traveler  upon  his  journey,  namely,  lodging 
as  well  as  food.  These  two  elements  of  an  inn  may  doubtless 
be  present  in  very  disproportionate  degrees  as  the  needs  of  the 
statute  may  require,  but  both  must  in  some  degree  be  present 
to  constitute  an  inn. 

§  333.  Restaurants  and  cafes. —  Something  more  than  the 
mere  providing  of  food  for  the  guest  or  customer  seems  to  be 
essential  to  the  inn.  The  restaurant  or  cafe  usually  provides 
no  care  for  the  customer;  that  is,  does  not  look  after  his  bag- 
gage, or  provide  a  place  to  stay.  One  has  not  that  thought  in 
connection  with  it  that  is  coupled  Avith  the  thought  of  the  inn, 
namely,  a  temporary  home  for  the  guest,  a  place  where  he  can 
rest  and  for  the  time  call  it  his  domicile.    On  the  contrar}^  the 

110   Fed.  G;  Story  on   Bailments,     192;  Wintermute  v.  Clark.  2  Sand, 
sec.  475;  Carpenter  v.  Taylor,  1  Hill,     242;  People  v.  Jones,  54  Barb.  316. 

297 


§  333.]  INNKEEPERS BOARDING-HOUSE    KEEPERS.       [PART    III. 

ordinary  restaurant  or  cafe  is  simply  a  place  where  the  cus- 
tomer or  guest  can  sit  at  the  table  and  be  provided  with  food 
and  nourishment.  Ordinarily  it  means  an  eating-house;  not 
infrequently  a  bar-room  is  a  part  of  it.  However,  a  restaurant 
may  be  an  inn  if  it  has  in  connection  with  it  apartments  for 
its  customers  where  lodgings  are  furnished,  and  the  ordinary 
and  usual  essentials  that  belong  with  the  inn  are  provided.  In 
such  case,  of  course,  the  obligations  resting  upon  the  restaurant- 
keeper  would  be  similar  to  those  of  the  innkeeper.  In  the 
case  of  Kopper  v.  Willis,^  Chief  Justice  Daly,  in  discussing  this 
question,  says:  "In  Cromwell  v.  Stevens  (2  Daly,  15),  I  had  oc- 
casion to  examine  what  constitutes  an  innkeeper,  not  only  by 
a  review  of  the  adjudged  cases  in  which  that  question  has  been 
considered,  but  by  an  historical  inquiry  into  the  origin  and  rea- 
son of  the  rule  that  innkeepers  are  responsible  for  the  loss  of 
the  property  of  their  guests;  in  which  I  came  to  the  conclu- 
sion, from  the  authorities,  that  an  inn  is  a  house  where  all  who 
conduct  themselves  properly,  and  who  are  able  and  ready  to 
pay  for  their  entertainment,  are  received,  if  there  is  accommo- 
dation for  them,  and  who,  without  any  stipulated  engagement 
as  to  the  duration  of  their  stay,  or  as  to  the  rate  of  compensa- 
tion, are,  while  there,  supplied,  at  a  reasonable  charge,  with 
their  meals,  lodging,  refreshments,  and  such  services  and  atten- 
tion as  are  necessarily  incident  to  the  use  of  the  house  as  a 
temporary  home.  That  a  mere  restaurant  or  eating-house  is 
not  an  inn,  nor  a  mere  lodging-house,  in  which  no  provision  is 
made  for  the  entertainment  of  travelers,  of  which  there  are 
many  in  this  and  other  cities;  where  the  guest  or  traveler  pays 
so  much  a  day  for  his  room,  and  takes  his  meals  or  not,  as  he 
thinks  proper,  in  the  restaurant,  paying  separately  for  each 
meal,  as  he  takes  it,  they  are  to  be  considered  inns,  if  the  res- 
taurant forms  part  of  the  establishment  and  the  whole  house 
is  kept  under  one  general  management  for  the  reception  of  all 
guests  or  travelers  that  may  come  there." 

As  to  sleeping-car  and  steamboat  companies  the  authorities 
are  not  entirely  harmonious  as  to  their  liability  as  innkeepers. 
Their  duties  are  in  many  respects  quite  similar,  and  the  same 
reasons  that  occasioned  the  laying  upon  the  innkeeper  the  ex- 
traordinary liability  largely  exists  in  the  case  of  the  sleeping- 

1 9  Daly,  460. 
298 


CH.  I.]  INNS   AND   INNKEEPERS.  [§  333. 

car  company  or  the  steamboat  company;  but  while  this  is  true, 
the  great  weight  of  authorit}''  holds  that  sleeping-car  companies 
are  not  innkeepers  or  liable  as  innkeepers,  but  as  to  steamboat 
companies  the  question  is  by  no  means  settled.  "While  the  inn- 
keeper is  bound  to  receive  as  guests  all  who  may  apply  at  his 
inn  who  are  suitable  and  ready  and  willing  to  pay  the  price  of 
the  entertainment,  the  sleeping-car  companies  limit  their  ac- 
commodations to  those  persons  who  have  purchased  first-class 
tickets  upon  their  train,  and  do  not  hold  themselves  out  to  fur- 
nish anything  except  a  place  to  sleep  while  upon  the  journey; 
the  passenger  not  having  the  privilege  of  a  room  where  he  can 
lock  the  door  and  guard  against  persons  who  seek  to  enter,  but 
the  accommodations  are  simply  in  accordance  with  an  express 
contract  that  has  been  made  with  the  company,  l^either  does 
the  company  undertake  to  care  for  any  property  or  goods  of 
the  traveler. 

In  Pullman  Car  Co.  v.  Smith  ^  the  court  say:  "  The  innkeeper 
is  obliged  to  receive  and  care  for  all  the  goods  and  property  of 
the  traveler  which  he  may  choose  to  take  with  him  upon  the 
journey.  Appellant  (meaning  the  Pullman  Car  Co.)  does  not  re- 
ceive pay  for  nor  undertake  to  care  for  any  property  or  goods 
whatever,  and  notoriously  refuses  to  do  so.  The  custody  of  the 
goods  of  the  traveler  is  not,  as  in  the  case  of  the  innkeeper, 
accessory  to  the  principal  contract  to  feed,  lodge  and  accommo- 
date the  guest  for  a  suitable  reward,  because  no  such  contract  ^^-^ 
is  made.     The  same  necessity  does  not  exist  here  as  in  the  case     "^^C/ 

17B  111.  364;  Lewis  v.  New  York  is  dependent  upon  the  owners  and 
Sleeping-car  Co.,  143  Mass.  267.  "A  officers  of  the  car  to  guard  him  and 
sleeping-car  company  holds  itself  out  the  property  he  has  with  him  from 
to  the  world  as  furnishing  safe  and  danger  and  thieves.  The  law  lays 
comfortable  care,  and  when  it  sells  a  the  duty  on  the  part  of  the  car  corn- 
ticket  it  impliedly  stipulates  to  do  so.  pany  to  afford  him  this  protection. 
It  invites  passengers  to  pay  for  and  While  it  is  not  liable  as  a  common 
make  use  of  its  cars  for  sleeping,  all  carrier  or  an  innholder,  yet  it  is  its 
parties  knowing  that  during  the  duty  to  use  reasonable  care  to  guard 
greater  part  of  the  night  the  passen-  the  passenger  from  theft,  and  if 
ger  will  be  asleep,  powerless  to  pro-  through  want  of  care  the  personal 
tect  himself  or  to  guard  his  propex'ty.  effects  of  a  passenger,  such  as  he 
He  cannot,  like  the  guests  of  an  inn,  might  reasonably  carry  with  him,  are 
by  locking  the  door  guard  against  stolen,  the  company  is  liable  for  it." 
danger.  He  has  no  right  to  take  such  Wood  worth  Sleeping  &  Parlor  Car 
steps  to  protect  himself  in  a  sleeping-  Co.  v.  Diehl,  84  Ind.  474, 6  Ky.  L.  Rep. 
car,  but  by  the  necessity  of  the  case  279. 

299 


§  333.]  INNKEEPERS  —  BOARDING-HOUSE    KEEPERS.       [PART    III. 

of  a  common  inn.  At  the  time  when  this  custom  of  an  inn- 
keeper's liability  had  its  origin,  wherever  the  end  of  the  day's 
journey  of  the  wayfaring  man  brought  him,  there  he  was  obliged 
to  stop  for  the  night,  and  intrust  his  goods  and  baggage  to  the 
custody  of  the  innkeeper.  But  here  the  traveler  was  not  com- 
pelled to  accept  the  additional  comfort  of  a  sleeping-car;  he 
might  have  remained  in  the  ordinary  car;  and  there  were  easy 
methods  within  his  reach  by  which  both  money  and  baggage 
■could  be  safely  transported."  The  supreme  court  of  Nebraska, 
however,  gives  us  an  adverse  holding  to  that  of  the  great  ma- 
jority of  the  courts  in  this  country.  In  the  case  of  Pullman 
Palace  Car  Co.  v.  Lowe  ^  the  court  say :  "  Except  in  the  matter 
of  furnishing  meals,  there  seems  to  be  no  essential  difference 
between  the  accommodations  at  an  inn  and  those  on  a  sleeping- 
car,  except  that  the  latter  are  necessarily  on  a  smaller  scale 
than  at  an  inn.  In  both  cases  the  porter  meets  the  traveler  at 
the  door  and  takes  whatever  portable  articles  he  may  have 
with  him.  He  waits  upon  him  and  the  other  passengers  in  the 
car  so  long  as  they  remain  therein.  The  traveler  is  not  required 
to  sit  in  his  seat  during  the  day,  but  may,  if  he  so  desire,  go 
forward  into  the  other  cars  on  the  train,  and  at  stations  go  out 
on  the  platform.  .  .  .  If  it  is  said  that  it  would  be  unjust 
to  hold  the  company  to  the  same  liability  as  an  innkeeper  be- 
cause thieves  might  engage  one  or  more  berths  in  a  car,  and  at 
the  first  opportunity  leave  the  car  carrying  what  articles  they 
could  steal  before  leaving;  the  same  is  true  of  an  innkeeper. 
Thieves,  in  the  garb  of  respectable  people,  may  take  rooms  at 
an  inn,  and  afterwards  steal  what  they  can  and  escape,  yet  no 
one  would  contend  that  the  innkeeper  would. not  be  responsible 
for  the  property  so  stolen,  and  this  whether  it  is  stolen  at  night 
or  in  the  da3'^-time;  yet  in  many  of  the  large  inns  of  this  country 
at  least,  there  are  numerous  doors  for  ingress  and  egress,  while 
in  a  sleeping-car  there  are  but  two.  "Were  meals  served  on  a 
sleeping-car  no  one  would  contend  that  it  differed  from  an  inn 
in  its  accommodations." 

But  the  great  weight  of  authorit}'^  is  that  sleeping-car  com- 
panies are  not  innkeepers,  and  they  are  not  subject  to  the  ex- 
traordinary liability  that  attaches  to  the  innkeeper.  In  Clarl- 
V.  Burns'^  the  court  say:  "The  liabilities  of  common  carriers, 

1 28  Neb.  239.  2  us  jjass.  277. 

300 


Cir.  I.]  INNS    AND    INNKEEPERS.  [§  333. 

though  similar,  are  distinct.  No  one  is  subject  to  both  liabil- 
ities at  the  same  time  and  with  regard  to  the  same  property. 
The  liabilit}'-  of  an  innkeeper  extends  only  to  goods  put  in  his 
charge  as  keeper  of  a  public  house,  and  does  not  attach  to  a 
carrier  who  has  no  house  and  is  engaged  only  in  the  business 
of  transportation."  However,  in  case  of  steamboat  companies, 
the  authorities  do  not  agree-  There  is  a  line  of  authorities  which 
holds  that  where  the  passenger  has  been  assigned  to  a  state- 
room in  a  steamboat,  of  which  he  has  charge  similar  to  that  of 
a  guest  of  an  hotel,  the  extraordinary  liability  would  attach 
that  attaches  to  the  hotel-keeper,  and  that  in  such  case  the 
steamboat  company  would  be  placed  upon  the  same  footing  as 
the  innkeeper.  In  Michigan  the  supreme  court  divided  upon 
the  question  in  the  case  of  McKee  v.  Owen} 

1 15  Mich.  115;  Adams  v.  N.  J.  pany  is  liable  to  the  same  extent  as 
Steamboat  Co.,  151  N.  Y.  163.  In  this  an  innkeeper,  but  distinguishes  be- 
case  the  briefs  will  be  found  very  tween  the  liability  of  the  steamboat 
full,  citing  cases  in  support  of  the  company  and  the  Pullman  Car  Corn- 
different  doctrines,  while  the  case  it-  pany. 
self  holds  that  the  steamboat  com- 

301 


CHAPTER  IL 


GUESTS. 


334  Who  are  guests. 

335.  How  far  traveled,  immaterial. 

336.  A  guest,  or  a  boarder. 
Length  of  time  —  Contracts 

for  rates  will  not  always  de- 
termine. 

Personal  presence  of  the  guest 

The  furnishing  of  what  ac- 
commodations necessary. 

Mere  visitors. 

The  length  of  time  one  re- 
mains, immaterial 


337. 


338, 
339. 

340. 
341. 


343.  The  purpose  for  which  one 
uses  the  inn. 

343.  Who  must  the  innkeeper  re- 

ceive as  guests. 

344.  Limitations. 

345.  Liability  for  refusing  to  re- 

ceive a  guest. 

346.  May  refuse  to  receive. 

347.  When  a  guest  is  taken  ill  with 

contagious  disease. 

348.  Disorderly  conduct. 


§  334.  Who  are  guests. —  The  definition  of  an  inn,  already- 
given  as  "  a  public  house  of  entertainment  for  all  who  choose 
to  visit  it,"  indicates  who  are,  in  a  legal  sense,  guests  of  the 
inn.  Some  of  the  authorities  have  considered  it  a  requisite,  in 
determining  who  are  guests,  that  they  should  be  travelers  or 
wayfarers,  and  some  of  the  courts  have  adopted  that  idea  in 
distinguishing  them  from  boarders  or  from  residents  of  the 
place;  but  the  better  opinion  seems  now  to  be  that  it  is  not  es- 
sential that  the  persons  should  come  from  any  distance,  and 
the  definition  supported  by  the  weight  of  authority  would 
seem  to  be  the  one  adopted  by  Carpenter,  J.,  in  Walling  v. 
Potter:  ^  "  a  guest  is  one  who  patronizes  an  inn  as  such." 


1  Walling  v.  Potter,  35  Conn.  183. 
The  defendant,  it  was  admitted,  was 
an  innkeeper.  The  plaintiff  and  de- 
fendant both  resided  in  the  town  of 
Kent,  and  the  inn  was  in  Kent  about 
half  a  mile  from  the  plaintiff's  resi- 
dence. The  plaintiff  came  to  the 
inn  on  an  evening,  stayed  there  over 
night  and  took  breakfast  there,  and 
paid  the  defendant  for  his  night's 
lodging  and  breakfast  his  usual 
charge  for  such  entertainment.  The 
plaintiff  claimed  that  on  these  facts 


he  was  a  guest  at  the  inn  and  en- 
titled to  treat  the  defendant  as  inn- 
keeper and  hold  him  responsible  as 
such.  The  defendant  claimed  that 
the  plaintiff  was  not  a  traveler  or 
a  wayfaring  man  and  not  a  guest  at 
the  inn  so  as  to  be  authorized  to 
charge  the  defendant  as  an  inn- 
keeper for  the  loss  claimed.  The 
court  held  in  that  case  that  distance 
was  not  material;  that  a  townsman 
or  neiglibor  may  be  a  traveler,  and 
therefore  a  guest  at  an  inn;  that  if 


i 


303 


CH.  II.]  GUESTS..  [§§  335,  336. 

In  Wintermute  v.  Clark  ^  the  court  say :  "  In  order  to  charge 
the  defendant  as  an  innkeeper  it  was  not  necessary  to  prove 
that  it  was  only  for  the  reception  of  travelers  that  his  house 
was  kept  open." 

§  335.  How  far  traveled,  immaterial. —  A  townsman  or  a 
neighbor  may  be  a  guest  at  an  inn  as  well  as  one  who  has  trav- 
eled hundreds  of  miles  or  from  another  country.  It  is  not  a 
question  of  distance,  but  rather  one  of  intention  on  the  part  of 
the  person  who  applies  for  entertainment.  If  he  seeks  the 
privileges  of  the  inn,  asking  for  entertainment  as  a  guest,  it  is 
enough,  and  he  must  be  so  received.^  It  has  been  said  that  any 
one  away  from  home,  receiving  accommodations  at  an  inn  as  a 
traveler,  is  a  guest  and  entitled  to  hold  the  innkeeper  respon- 
sible as  such. 

§  336.  A  guest  or  a  boarder. —  The  discussion  as  to  who  are 
guests  at  once  suggests  the  inquiry  as  to  who  are  boarders.  It  is 
important  that  we  should  be  able  to  determine  this,  as  it  so  often 
fixes,  as  we  shall  see,  the  extent  of  the  liability  of  the  inn- 
keeper. For  a  better  understanding  of  the  question  we  have 
therefore  deemed  it  best  to  discuss  these  questions  together. 
The  liabilit}'"  of  the  innkeeper  is  based  largely  upon  public 
policy.  From  the  fact  that  persons  traveling  through  the 
country  are  of  necessity  compelled  to  put  up  at  inns  for  en- 
tertainment—  transeuntes  causa  Jiospitandi  (from  which  last 
word  they  are  called  guests), —  without  knowing  anything  about' 
the  character  of  the  house,  the  law  gives  an  assurance  of  the 
safety  of  their  property  and  themselves. 

Say  the  court,  by  Parsons,  J.,  in  N'eal  v.  Wilcox:  ^  "  It  is 
sometimes  difficult  to  draw  the  line  between  guests  and  board- 
he  resided  at  the  inn  his  relations  the  prominent  idea  is  that  a  guest 
wouhl  be  that  of  a  boarder,  but  if  he  must  be  a  traveler,  wayfarer  or  a 
resided  away  from  it,  whether  far  or  transient  comer  to  an  inn  for  lodg- 
near,  and  came  in  for  entertainment  iug  and  entertainment.  It  is  not 
as  a  traveler,  and  received  it  as  such,  now  deemed  essential  that  a  person 
paying  the  customary  rates,  there  sliould  have  come  from  a  distance  to 
were  no  reasons  why  he  should  not  be  constitute  a  guest.  '  Distance  i«  not 
held  to  be  a  guest  and  entitled  to  material'  A  townsman  or  neighbor 
the  rights  and  privileges  of  a  guest,     may  be  a  traveler,  and  therefore  a 

1  Wintermute  v.  Clark,  5  Sandf.  guest  at  an  inn,  as  well  as  he  who 
242.  comes   from  a   distance   or   from  a 

^  In  Curtis  v.  Murphy,  63  Wis.  4,     foreign  country." 
the  court  say:  "In  these  definitions        34  n.  C.  (Jones,  L.)  148. 

303 


§  336.]  INNKEEPERS BOARDING-HOUSE    KEEPERS.       [PAET    III. 

ers;  they  frequently  run  into  each  other  like  light  and  shade, 
so  the  line  between  a  common  carrier  and  a  bailee  to  carry 
is  sometimes  scarcely  perceptible;  but  the  law  makes  the 
distinction  and  it  is  the  province  of  the  judge  to  draw  the 
line.  A  transient  customer  at  an  inn,  although  he  be  not  a 
traveler  or  stranger,  is  considered  as  a  guest.  A  lodger  who 
sojourns  at  an  inn  and  takes  a  room  for  a  specified  time  and 
pays  for  his  lodging  on  a  special  agreement,  as  by  the  month 
or  week,  is  a  boarder.  So  the  reason  restricts  the  action  to  one 
w4io  comes  for  entertainment  causa  hosintandiP 

§  337.  Length  of  time  —  Contracts  for  rates  will  not  al- 
ways determine. —  It  cannot  be  said,  however,  that  it  can 
always  be  determined  whether  one  is  a  boarder  or  a  lodger 
from  the  fact  that  he  has  made  a  contract  to  remain  for  a 
certain  length  of  time,  or  that  he  is  to  have  reduced  rates. 
The  traveler  who  is  to  stay  but  for  a  night  ma}'^  have  a  contract 
for  reduced  rates;  on  the  other  hand,  one  Avho  is  to  remain  for 
a  considerable  length  of  time  may  have  no  such  contract,  and 
may  be  considered  as  a  transient.  It  has  been  said  that  it  de- 
pends more  upon  the  status  of  the  person.  Is  he  a  transient 
or  is  he  a  traveler?  Or  is  he  one  who  is  intending  to  stay,  to 
become  settled  at  the  place  as  his  home  ?  If  he  is  at  the  inn 
expecting  to  remain  and  make  the  place  his  home  for  a  definite 
period,  and  at  a  fixed  rate  by  the  week  or  the  month,  there 
can  be  little  question  that  his  status  would  be  that  of  a  boarder. 

\vi.2Ioore-v.  Long  Beach  Co.^  the  plaintiff  having  arranged  for 
a  long  stay  with  his  family,  it  was  held  that  he  was  a  boarder. 
In  McGee  v.  Pacific  Imp.  Co.  it  was  held  that  the  question 
"was  one  of  fact  to  be  determined  by  the  court  upon  ail  the 
evidence  before  it.  "  Whether  the  plaintifi"  made  a  special  ar- 
rangement respecting  her  stay  with  the  defendant  was  only 
evidence  to  be  considered  by  the  court  in  determining  the  ul- 
timate fact  whether  she  was  a  guest  or  a  boarder.  Even  if  a 
finding  of  the  court  that  she  had  made  special  arrangements 

1 87  Cal.  483;  McGee  v.  Pacific  Imp.  v.  Pacific  Imp.  Co.,  93  Cal.  259.     "An 

Co.,  98  Cal.  678,  93  Cal.  2o3;  Pinker-  innkeeper  may  contract  specially  as 

ton  V.  Woodard,  33  Cal.  597,  91  Am.  a  boarding-house  keeper."    Story  on 

Dec.  657;  Hancock  v.  Rand,  17  Hun  Bailments,  225.     See  note  to  Manu- 

(N.  Y.),  279,  94  N.  Y.  1,  46  Am.  Rep.  facturing  Co.  v.  Miller.  21  L.  R.  A. 

112;  Hall  v.  Pike,  100  Mass.  495;  Fay  229;  Fisher  v.  Kelsey,  121  U.  S.  383. 

304 


\ 


CH.  II.]  GUESTS.  [§  338, 

with  the  defendant  for  board  and  lodging  by  the  weeli  had 
been  sustained  by  the  evidence,  that  fact  would  not  be  deter- 
minative of  the  issue  whether  she  was  a  guest  or  a  boarder,  but 
would  be  merely  evidence  to  be  considered  in  determining  that 
issue."  ^ 

§  338.  Personal  presence  of  the  gnest. —  The  personal  pres- 
ence of  the  guest  at  the  hotel  is  not  always  necessary  in  order 
to  hold  the  innkeeper  liable  as  an  innkeeper  for  his  property 
which  has  been  lost  at  the  inn:  as  where  his  ba<2e:a<2:e  was 
taken  there  in  charge  of  his  servants  or  a  member  of  his  fam- 
ily in  a  way  that  the  law  would  imply  that  while  there  it  is 
in  his  possession.  This,  no  doubt,  is  carrying  the  rule  to  its 
farthest  limit,  and  it  has  been  questioned  whether  it  is  thv3  law. 
The  inn  or  hotel  is  for  the  entertainment  of  the  guest  prima- 
ril}^  and  the  protection  of  his  baggage  or  property  which  ac- 
companies him  is  an  incident  to  the  entertainment,  and  it 
would  seem  that  it  is  carrying  the  rule  a  little  too  far  to  say 
that  an  innkeeper  could  be  made  a  bailee  of  the  property  of  a 
person  and  subjected  to  the  extraordinary  liability  of  an  inn- 
keeper where  the  owner  is  not  entertained  as  a  guest  at  the 
hotel.^     Some  of  the  courts  contending  for  the  rule  undertake 

1 "  The  guest  comes  without  any  bar-  stay  in  the  city  in  which  the  inn  was 
gain  for  time,  remains  witiiout  one,  located."  "  In  this  case  it  was  laid 
and  may  go  when  he  pleases,  paying  down  that  the  father's  status  as  a 
only  for  the  actual  entertainment  re-  traveler,  like  any  other  status,  was 
ceived.  The  rule  is  not  changed  by  shown  to  exist,  and  is  presumed  to 
the  fact  that  the  person  remains  a  continue,  and  that  neither  the  agree- 
long  time  at  the  inn  in  this  way."  ment  by  which  he  was  to  pay  special 
Slioecraft  v.  Bailey,  25  Iowa,  553;  rates  for  himself  and  family  lower 
Metzger  v.  Schnabel,  23  Misc.  (N.  Y.)  than  those  ordinarily  charged  for 
098;  Pullman  Car  Co.  v.  Lowe,  28  transient  guests,  nor  the  fact  that  he 
Neb.  289,  26  Am,  St.  Rep.  325;  Berk-  remained  in  the  inn  for  a  month, 
shire  Woolen  Co,  v.  Proctor,  7  Cush.  nor  any  other  fact  appearing  in  tlie 
(Mass.)  417.  In  Lusk  v.  Belote,  22  case,  furnished  any  evidence  tliat  his 
Minn.  468,  "a  father  who  comes  from  character  was  changed  from  that  of 
another  state  wherein  he  resides  and  a  traveler  to  that  of  a  boarder." 
stays  for  a  month  with  his  family  at  ^  In  a  very  early  case  (Towson  v. 
a  hotel  in  which  the  family  is  stop-  Havre  de  Grace  Bank,  6  Harr.  & 
ping  is  a  traveler  and  can  recover  for  Johns.  (Md,)  47),  one  was  intrusted 
thetheftof  his  watch  from  the  rooms  with  a  sum  of  money  by  the  bank 
occupied  by  himself  and  family  at  to  be  passed  in  Baltimore  for  the 
the  hotel,  where  his  purpose  evi-  benefit  of  the  bank,  or  to  be  re- 
dently  was  to  make  a  flying  visit  to  turned.  The  agent  for  the  bank 
his  family  and  a  merely  temporary  agreed  to  this  undertaking,  which 
20                                              305 


§  338.]  INNKEEPERS BOAEDING-HOUSE    KEEPERS.       [PART    III. 

to  draw  a  distinction  between  a  case  where  property  intrusted 
to  a  bailee  is  lost  by  the  bailee,  and  one  where  the  property  is 
intrusted  to  an  agent  is  lost.  ISTone  of  the  cases  hold  that  in 
the  former  case  the  innkeeper  would  be  subject  to  extraordi- 
nary liability.^  The  rule,  however,  seems  to  be  well  settled 
that  if  the  property  left  with  the  innkeeper  for  safe-keeping 
is  inanimate  property  and  the  person  leaving  it  is  not  a  guest, 
that  is,  a  person  at  the  hotel  receiving  entertainment,  the  inn- 
keeper is  not  liable  for  its  loss  except  as  he  may  be  liable  as  an 
ordinary  bailee. 

Leaving  a  horse  and  vehicle  with  which  one  is  traveling  at 
an  inn  has  been  held  to  constitute  the  owner  a  guest.  But  it 
seems  that  this  was  more  generally  the  rule  in  times  when  per- 
sons traveled  through  the  country  by  their  own  conveyance  than 
it  is  at  the  present  time.  This  rule  will  be  found  to  be  laid 
down  more  generally  in  the  early  English  cases  and  in  some 
of  the  earlier  cases  in  this  country.     As,  for  example,  in  the 


was  entirely  for  the  accommodation 
of  the  bank.  He  proceeded  to  Balti- 
more, taking  with  him  the  money — 
tlie  bank  notes  —  and  put  up  as  a 
guest  at  the  house  of  the  appellant, 
who  was  a  common  innkeeper  in  the 
city  of  Baltimore.  His  money  was 
intrusted  to  the  barkeeper  of  the  inn 
for  safe  keeping,  and  through  him 
was  lost.  The  action  was  brought 
by  the  bank  against  the  innkeeper. 
After  reciting  the  facts  the  court 
say:  "It  is  the  profit,  then,  to  the 
innkeeper  which  often  creates  his 
liability,  and  it  matters  not  out  of 
whose  funds  the  expenses  of  the  cost 
are  defrayed.  It  is  enough  that 
he  receives  the  consideration  from 
whence  his  responsibility  arises  — 
the  premium  for  his  risk.  Thus  it  is 
said  in  a  case  in  Yelverton  that  '  if 
A.  sends  his  money  by  his  fiiend  who 
is  robbed  in  the  inn  at  which  he  is 
a  guest,  A.  shall  have  the  action.' 
And  there  is  no  reason  why  it  should 
not  be  so:  the  innkeeper  being 
chargeable  not  on  the  ground  that 
he  entertains  the  owner  of  the  money 


or  otlier  goods,  but  because  he  re- 
ceives, no  matter  by  whom  paid,  a 
compensation  for  the  risk.  The 
judgment  is  this  case,  therefore, 
ought  to  be  affirmed."  In  Coykendall 
V.  Eaton,  55  Barb.  (N.  Y.)  188,  it  was 
held  "the  duties  owed  by  an  inn- 
keeper as  such  are  due  only  to  his 
guests.  To  constitute  one  a  guest  it 
is  not  necessary  that  he  be  at  the  inn 
in  person:  it  is  enough  that  his  prop- 
erty be  there  in  the  charge  ef  his 
wife  or  servant,  or  agent  who  is 
there  in  his  employment,  or  as  a 
member  of  his  family;  but  they  must 
be  there  in  such  a  way  that  the  law 
will  implj-  the  property,  while  there, 
to  be  in  his  possession  and  not  in  the 
possession  of  the  person  who  is  there 
with  it  as  his  bailee.  " 

1  Coykendall  v.  Eaton,  55  Barb. 
(N.  Y.)  188.  Mutually  opposed  to  this 
case  is  the  case  of  Mason  v.  Thomp- 
son, 9  Pick.  (Mass.)  280.  McDaniels 
V.  Robinson,  28  Vt.  387,  67  Am.  Dec. 
720:  Palin  v.  Reid,  10  Ont.  App.  63; 
Strauss  v.  Hotel,  etc.  Co.,  12  Q.  B.  D.  27; 
Toub  v.  Schmidt,  60  Hun  (N.  Y.),  409. 


306 


OH.  II.]  GUESTS.  [§§  339,  34:0. 

case  of  Mason  v.  Thompson^  9  Pick.  280,  the  traveler  never 
went  to  the  inn,  but  stopped  as  a  visitor  with  a  friend  and  sent 
her  horse  and  carriage  to  the  inn.  After  four  days  she  sent 
for  the  property  and  found  that  a  part  of  it  had  been  stolen, 
but  still  the  innkeeper  was  held  liable.' 

§  339,  The  furnishing  of  what  accommodations  neces- 
sary.—  It  seems  that  one  may  become  a  guest  although  he 
does  not  receive  or  obtain  all  of  the  accommodations  that  the 
inn  usually  furnishes.  As,  for  example,  one  may  be  entitled 
to  all  the  privileges  of  a  guest,  and  render  the  innkeeper  liable 
as  an  innkeeper,  who  only  obtains  lodgings  and  takes  his  meals 
at  some  other  place,  or  where  he  obtains  meals  and  does  not 
have  lodging  at  the  inn.  If  in  such  case  he  receives  a  portion 
of  the  accommodations  as  a  transient  he  may  be  in  all  respects 
considered  as  a  guest.  In  the  case  of  Lynar  v.  Mossope^  the 
plaintiff  went  from  a  train  on  which  he  arrived  to  the  defend- 
ant's hotel,  taking  with  him  his  baggage.  He  applied  to  the 
clerk  of  the  hotel  for  a  room,  Avhich  he  occupied  for  the  pur- 
pose of  dressing  and  making  his  toilet  before  visiting  a  friend. 
During  the  time  there  was  sent  to  him  hot  water  with  which 
to  shave.  Occupying  the  room  only  for  a  short  time,  he  left 
his  baggage  in  the  room  and  went  to  his  friend.  It  was  held 
that  he  was  a  guest  during  the  time  he  was  using  the  room  for 
the  purpose  of  dressing.  Hotels  that  are  kept  on  the  European 
plan,  where  guests  have  no  other  accommodations  except  the 
accommodations  of  the  rooms,  are  held  to  be  subject  to  the  law 
of  innkeepers,  and  persons  so  occupying  the  rooms  are  guests.^ 

§  340.  Mere  visitors.—  Persons  who  merely  visit  the  inn 
or  hotel  for  the  purpose  of  meeting  friends,  or  dining  with 
them,  are  not  guests  of  the  hotel;  they  may  be' transients,  but 

iMcDaniels    v.  Robinson,   26    Vt.  Dec.  560;  Orchard  v.  Bush,  2  Q.  B. 

316,  62  Am.  Dec.  574;  Russell  v.  Fa-  284,  78  L.  T,  (N.  S.)  577.     "One  at  an 

gan,   7  Houst.    (Del.)   382:    York   v.  inn  merely  for  the  purpose  of  attend- 

Grindstone,  1  Sallf.  388;  2  Lord  Ray-  ing  a  ball  was  held  not  to  be  a  guest." 

mond,  866;  Walker  v.  Sharp,  31  U.  C.  Fitch  v.  Casler,  17  Hun  (N.  Y.).  126; 

Q.  B.  340.  Carter  v.  Hobbs,  12  Mich.  52.    Judge 

2  36  U.  C.  Q.  B.  230.  Christiancy  in  rendering  the  opinion 

SBurnstein  v.   Sweeney,  33  N.  Y.  said:  "Tlie  plaintiff  was  no  more  the 

Sup.  Ct.  271;  Bullock  V.  Adair,  63  111.  guest  of  the  inn   than  a  person  re- 

App.  30.     "His  taking  food  without  siding  across  the  street  and  attend- 

lodging  constitutes  one    a    guest."  ing  the  ballon  the  same  occasion." 
Read  v.   Amidon,  41  Yt.  15.  98  Am. 

307 


§§341-43.]     INNKEEPERS  —  BOARDING-HOUSEKEEPERS.     [PART  III. 

they  are  not  there  for  the  purpose  of  obtaining  the  accommo- 
dations that  the  hotel  usually  and  generally  gives  to  its  patrons. 
They  are  really  guests  of  the  persons  whom  they  visit,  and  not 
guests  of  the  inn.  In  Gastenhofer  v.  Clair  ^  the  plaintiff  claimed 
to  have  become  a  guest  by  reason  of  ordering  and  taking  din- 
ner while  waiting  for  his  uncle  to  arrive.  The  court  say  this 
put  him  in  no  different  position  from  that  he  would  have  oc- 
cupied had  he  sat  down  with  the  uncle,  as  he  had  been  invited 
to  do.  He  was  there  upon  the  invitation  of  that  gentleman, 
and  with  no  intent  to  sojourn  at  the  hotel  as  a  guest  for  even 
the  briefest  period. 

It  seems  that  the  question  is  decided  upon  the  motive  with 
which  one  visits  the  inn,  whether  it  is  to  use  it  for  a  very  brief 
period  or  for  the  most  trifling  purpose  as  a  public  house. 
And  it  cannot  be  said  that  where  one  visits  the  hotel  merely 
to  call  upon  or  visit  a  guest  at  the  place  and  to  incidentally 
enjoy  the  hospitality  of  the  house,  it  was  his  intention  to  be- 
come a  guest.  He  no  more  becomes  a  guest  than  he  would 
if  using  the  place  by  sitting  in  the  parlors,  or  using  the  read- 
ing room  or  writing  room,  or  visiting  with  companions  about 
the  office  or  sitting  rooms.  In  such  case  it  cannot  be  said  that 
there  is  any  intention  upon  the  part  of  the  visitor  to  become 
a  guest  at  the  inn,  and  there  is  no  consideration  or  benefit  de- 
rived by  the  innkeeper  and  no  understanding  that  the  person 
is  a  patron  of  the  place.- 

§  341.  The  length  of  time  one  remains,  immaterial. —  The 
mere  fact  that  one  remains  at  the  inn  a  long  time  or  for  only 
a  short  time  is  not  of  itself  sufficient  to  determine  the  question 
as  to  whether  he  is  a  boarder  or  a  guest.  It  is  a  question  that 
must  be  determined,  as  we  have  said,  from  the  fact  as  to 
whether  he  is  a  transient  or  whether  he  has  settled  down  at 
the  place  intending  to  remain  and  become  settled  in  the  hotel 
as  his  home  for  the  time,  and  it  is  often  a  difficult  question  to 
determine.  ^ 

§  342.  The  pnrpose  for  which  one  nses  the  inn. —  The 
guest  must  use  the  inn  for  legitimate  purposes,  and  if  one 
should  go  to  the  inn  for  the  purpose  of  committing  a  crime, 
and  is  engaged  in  illegal  pursuits,  as,  for  example,  burglar- 
izing the  rooms,  he  cannot  be  said  to  have  the  privileges  of 

1 10  Daly,  265.  2  Bennett  v.  Melor,  5  Term  Rep.  273. 

308 


CH.  II.]  GUESTS.  [§  343. 

a  guest.  And  so  where  one  goes  to  the  inn  for  immoral  pur- 
poses, as  where  one  went  to  a  hotel  with  a  disreputable  woman, 
registered  with  her  as  husband  and  wife,  was  assigned  a  room 
and  delivered  some  money  to  the  clerk,  who  absconded  there- 
with, it  was  held  that  he  was  not  a  guest  and  could  not  recover 
the  money  from  the  innkeeper.^ 

§  343.  Who  must  the  innkeeper  receive  as  guests. —  The 
innkeeper  may  be  said  to  be  a  quasi-ipublic  servant,  keeping  a 
public  house  where  any  one,  with  but  few  exceptions,  has  a 
right,  on  complying  with  certain  regulations,  to  go  and  be 
received,  and  find  the  rest  and  entertainment  usually  furnished 
by  the  keeper  of  the  inn.  So  it  may  be  said  that  as  a  general 
rule  an  innkeeper  is  bound  to  receive  and  entertain,  if  he  has 
room  in  his  house,  every  one  who  applies  to  him  for  entertain- 
ment who  is  orderly  and  law-abiding  and  tenders  the  price,  or 
is  able  and  willing  to  pay  the  price  of  his  entertainment.  In 
Bowlin  V.  Lyon  ^  the  court  say :  "  The  grounds  upon  which  these 
restrictions  are  imposed  are,  that  persons  engaged  in  this  voca- 
tion are  in  some  sense  servants  of  the  public,  and  in  conducting 
their  business  they  exercise  a  privilege  conferred  upon  them 
by  the  public,  and  they  have  had  secured  to  them  by  the  law 
certain  privileges  and  rights  which  are  not  enjoyed  by  the 
members  of  the  public  generally."  And  in  a  leading  English 
case^  it  is  said:  "The  innkeeper  is  not  to  select  his  guests;  he 
has  no  right  to  say  to  one  you  shall  come  in  to  my  inn,  and  to 
another  you  shall  not,  as  every  one  coming  and  conducting 
himself  in  a  proper  manner  has  a  right  to  be  received ;  and  for 
this  purpose  innkeepers  are  a  sort  of  public  servant,  they  hav- 
ing in  return  a  kind  of  privilege  of  entertaining  travelers  and 
supplying  them  with  what  they  need.     The  innkeeper,  in  the 

1  Curtis  V.  Murphy,  63  Wis.  4,  53  2  67  Iowa.  563. 

Am.  Rep.  243.     The  court,  after  stat-  »  Rex  v.  Ivens,  7  Car.  &  P.  213-219; 

ing  the  case,  reaches  the  following  Hawtliorne  v.  Hammond,  1  Car.  & 

conclusion:  "That  one  whose  status  K.  404-407.     "In   summing  up  this 

is  a  guest  is  a  traveler  or  a  transient  case,  Parker.  B.,  said  there  is  no  doubt 

comer  who  puts  \ip  at  an  inu  for  a  that  the  law  is  that  a  person  who 

lawful  ])urpose  to  receive  its  custom-  keeps  a  public  inn  is  bound  to  admit 

ary  lodging  and  entertainment,  and  all  persons  who  apply  peaceably  to 

not  one  who  takes  a  room  solely  to  be  admitted  as  guests."    Atwater  v. 

commit  an  offense  against  the  laws  Sawyer,  76  Me.  538. 
of  the  state.''    See,  in  this  connec- 
tion, Suia  V.  Omel,  61  N.  Y.  S.  659. 

309 


§344:.]  INNKEEPERS BOARDING-HOUSE    KEEPERS.        [PART    III. 


very  doing  of  his  business,  necessarily  holds  himself  out  to  the 
public  as  a  keeper  of  a  public  house,  and  he  solicits  all  to  come 
and  patronize  him  and  become  guests  of  his  inn."  And  so  the 
inn  from  time  immemorial  has  been  considered  to  be  a  place 
where  the  traveler,  or  any  person  desiring  the  accommodation 
it  afforded,  may  go  and  be  cared  for  as  a  guest,  and  the  keeper 
of  the  inn  is  not  allowed  to  deny  the  right  to  any  person  who 
comes  who  is  suitable  and  able  and  ready  and  willing  to  pay 
for  the  entertainment  furnished.  In  Marlcham  v.  Broion^  it  is 
said :  "  An  innkeeper  holds  out  his  house  as  a  public  place  to 
which  travelers  may  resort,  and  of  course  surrenders  some  of 
the  rights  which  he  would  otherwise  have  over  it;  holding  it  out 
as  a  place  of  accommodation  for  travelers,  he  cannot  prohibit 
persons  who  come  under  that  character,  in  a  proper  manner  and 
at  a  suitable  time,  from  entering,  so  long  as  he  has  the  means 
of  accommodation  for  them." 

§344.  Limitations. —  To  the  rule  which  requires  the  inn- 
keeper to  receive  all  who  apply  to  him  for  entertainment,  who 
are  willing  and  able  to  pay  the  price,  there  are  certain  limita- 
tions; and  these  limitations  are  not  alone  for  the  advantage  of 
the  innkeeper,  but  they  are  required  as  well  for  the  comfort  and 
safety  of  the  guests,  and  therefore  it  is  not  onh^  the  privilege 
of  the  innkeeper  to  take  advantage  of  these  limitations,  but  it 
becomes  his  duty  to  do  so,  otherwise  he  might  become  liable  to 
the  guests  of  his  inn  in  an  action  for  damages.  These  limita- 
tions have  already  been  foreshadowed,  and  perhaps  more  than 
indicated  by  what  has  been  said  upon  the  subject  as  to  who  the 
innkeeper  must  receive.  Generally,  they  may  be  grouped  under 
three  heads: 


I 


18  N.  H.  523-528,  Am.  Dec.  209. 
In  Watson  v.  Cross,  2  Duv.  (Ky.)  147, 
the  court  say:  "The  innkeeper  was 
legally  bound  to  receive  and  enter- 
tain all  guests  apparently  responsible 
and  of  good  conduct  who  might  come 
to  his  house,  and  if  he  refused  to  do 
so  he  was  liable  alike  to  an  indict- 
ment and, an  action  by  the  party  ag- 
grieved; and  the  mere  fact  of  in- 
fancy would  not  justify  him  in  any 
such  refusal.  Wliere  a  party  volun- 
tarily contracts  with  an  infant,  then 


the  infant  may  avail  himself  of  his 
legal  disability  and  avoid  the  con- 
tract, if  not  for  necessaries;  but  to 
apply  the  principle  to  contracts 
which  are  compulsory  on  the  side  of 
the  other  contracting  party  would  be 
to  make  the  law  an  instrument  of 
oppression.  It  would  be  a  legal  ab- 
surdity to  compel  a  man  to  make  a 
contract  and  at  the  same  time  per- 
mit the  other  party,  wlio  is  the  in- 
strument of  his  compulsion,  to  avoid 
it." 


310 


CH.  II.]  GUESTS.  [§  344. 

1st.  The  innkeeper  may  refuse  to  receive  one  as  a  guest  if 
he  is  unable  to  do  so  on  account  of  his  house,  or  inn,  being  filled, 
and  there  is  no  further  accommodations  for  a  guest. 

2d.  He  may  refuse  to  receive  disorderly  persons,  and  if  such 
a  person  has  been  received,  or,  if  after  having  been  received, 
he  becomes  disorderly,  the  innkeeper  may  require  him  to  leave 
the  house. 

3d.  He  may  refuse  to  receive  persons  who  are  infected  with 
contagious  diseases, 

(1)  As  to  the  first  limitation  —  refusing  to  receive  a  guest  on 
account  of  the  house  being  filled,—  in  almost  every  case  it  is  not 
difficult  to  understand  that  these  limitations  could  be  taken 
advantage  of  by  the  innkeeper;  but  what  would  be  his  duty  in 
extreme  cases,  or  to  wliat  extent  he  would  be  bound  to  crowd 
the  capacity  of  the  house,  is  difficult  to  decide.  As,  'for  ex- 
ample, in  case  of  severe  storms,  or  in  case  of  large  crowds  that 
have  been  gathered  to  the  town  or  city  where  the  hotel  or  inn 
is  situated ;  what  is  the  abilit}^  of  the  person  turned  away  to 
obtain  a  place  for  lodging  and  entertainment;  the  physical 
condition  of  the  person  applying, —  all  these  questions  would 
seem  to  enter  into  the  matter  of  deciding  correctly  the  rights 
and  liabilities  of  the  innkeeper  to  turn  away  a  person  applying 
at  his  inn  for  shelter  or  food.  No  doubt  the  rule  would  be 
decided  by  the  question  of  reasonableness  under  all  the  circum- 
stances, coupled  with  the  lack,  of  course,  ot  any  malice  or  de- 
sign upon  the  part  of  the  innkeeper. 

(2)  As  to  the  second  exception,  the  decision  of  the  innkeeper 
cannot  be  based  entirely  upon  his  own  rights  and  privileges, 
but  he  is  bound  to  look  after  the  care,  comfort  and  safety  of 
those  who  are  guests  at  the  inn.  He  is  under  obligation  to 
those  persons  who  have  already  entered  the  inn  or  the  hotel, 
paid  for  their  entertainment  and  entitled  to  have  furnisiied 
to  them  not  only  shelter  and  food,  but  also  the  privilege  of 
enjoying  the  comforts  that  are  usually  furnished  to  guests  of 
the  place.  The  guest  is  not  legally  called  upon  to  put  up  with 
the  annoyance  of  drunken,  indecent  and  vulgar  associates  who 
are  carrying  on  their  disorderly  practices  to  the  extent  of 
makinjr  his  stav  disan:reeable  and  unbearable.  On  the  con- 
trary,   he  may  call  upon  the  innkeeper  to  turn  away   such 

311 


§  344.]  INNKEEPERS BOARDING-HOUSE    KEEPERS.       [PART    III. 

persons  unless  thej  desist  from  such  practices.  And  so  wliere 
a  guest  is  assaulted  by  a  drunken  person  and  suffers  by  reason 
of  such  disorderly  treatment,  or  where  he  has  suffered  from 
loss  of  property  which  has  been  stolen  from  him  while  in  the 
inn,  or  from  any  other  disorderly  conduct  on  the  part  of  per- 
sons who  are  accepted  as  guests,  he  would  no  doubt  have  an  ac- 
tion against  the  innkeeper  for  the  damage  he  might  sustain, 

(3)  The  third  limitation  mentioned,  namely,  the  refusal  to 
receive  guests  who  are  infected  with  contagious  diseases,  is 
based  not  only  upon  the  privilege  of  the  innkeeper  to  reject 
such  persons,  and  upon  the  right  which  the  guest  has  to  be 
entertained  without  danger  of  being  infected  with  contagious  dis- 
eases, but  it  also  rests  upon  public  policy.  The  inn,  as  we  have 
seen,  is  a  public  house  kept  for  the  entertainment  and  comfort 
of  the  public.  It  could  hardly  be  said  that  under  such  cir- 
cumstances the  law  would  permit  an  innkeeper  to  receive  per- 
sons into  such  a  public  place  who  would  inoculate  or  infect 
guests  who  come  to  the  place  expecting  to  be  entertained  and 
protected  as  guests.  In  GilheH  v.  Hoffman  ^  the  plaintiff  claimed 
damages  of  the  defendants,  innkeepers,  on  account  of  having 
been  wrongfully'-  exposed  to  the  small-pox  at  their  hotel, 
whereby  the  plaintiff  became  sick,  and  was  removed  to  a  pest- 
house,  where  she  suffered  great  bodil}"  pain  and  mental  anguish 
and  was  permanently  disfigured.  The  court  say:  "By  keep- 
ing their  hotel  open  for  business  they  (the  innkeepers)  in  fact 
represented  to  all  travelers  that  it  was  a  reasonably  safe  place 
at  which  to  stop;  and  they  are  hardly  in  a  position  now  to  in- 
sist that  one  who  accepted  and  acted  on  this  representation 
and  was  injured  because  of  its  untruth  shall  be  precluded  from 
recovering  against  them  for  the  injury  on  the  ground  that  she 
might  by  further  inquiry  have  learned  its  falsity." 

It  is  perhaps  because  of  these  limitations  that  it  necessarily 
follows  that  an  innkeeper  may  make  reasonable  rules  and  regu- 
lations which  he  may  require  the  guests  to  observe,  and,  if 
they  refuse  to  comply  with  these  reasonable  rules  and  regula- 
tions, may  go  to  the  extent  of  ejecting  them  from  the  house. 
But  in  the  carrying  out  of  the  rules  and  regulations  thus  made, 
and  in  fact  in  taking  advantage  of  the  limitations  which  have 
been  discussed,  the  innkeeper  must  exercise  good  ju,.»gment 

166  Iowa,  205. 
313 


CH.  II.]  GUESTS.  [§  345. 

and  reasonable  care,  or  he  may  become  liable  for  his  treat- 
ment of  or  actions  toward  the  guests  in  these  respects. 

§  345.  Liability  for  refusing  to  receive  a  guest. —  Having 
discussed  the  general  rules  which  define  the  duty  of  the  inn- 
keeper to  receive  all  who  may  apply  and  his  right  to  exercise 
the  limitations  which  have  also  been  mentioned,  we  have 
now  to  notice  what  his  liability  may  be  in  refusing  to  receive 
a  guest  where  legally  and  of  right  it  is  his  duty  to  receive  such 
person.  It  would  be  difficult,  indeed,  to  classify  the  numerous 
cases  which  present  themselves  in  contemplating  this  branch 
of  the  subject.  It  should  be  borne  in  mind  that  the  rule  w4iich 
governs  in  like  cases  is,  that  where  there  is  a  duty  imposed  by 
law  upon  a  person,  with  which  he  neglects  or  refuses  to  comply, 
and  his  neglect  or  refusal  results  in  damage  to  another,  he 
is  liable  to  answer  for  such  damage.  Just  how  far  this  rule, 
however,  can  be  carried  has  been  somewhat  interesting  both 
to  the  law  writers  and  to  the  courts.  The  supreme  court  of 
Pennsylvania  in  McHugh  v.  Sehlosser  et  al.^  held  that  an  inn- 
keeper was  liable  for  the  death  of  a  person  who,  while  sick, 
was  by  the  innkeeper  driven  out  into  a  storm  without  ade- 
quate covering,  and  left  for  the  space  of  an  hour  in  a  stream  of 
melting  ice  and  snow,  where  he  fell  down  from  inability  to 
stand  on  his  feet,  holding  that  it  was  reasonable  to  suppose 
that  death  might  follow  such  sudden  exposure  in  his  condition. 
The  courts  have  gone  further  than  this  in  their  rulings,  and  it 
has  been  held  that  an  innkeeper  might  be  liable  to  an  indict- 
ment for  turning  away  a  guest  from  his  inn  when  he  had  room 

^159  Pa.  St.  480.     This  case  is  an  ill  and  remained  most  of  two  days  in 

unusual    and    interesting   one   and  bed;  a  physician  was  called,  who  pre- 

settles  the  principle  discussed  in  the  scribed  for  him.     During  the  day  he 

text,  and  perhaps  is  the  only  case  obtained  sevei'al  drinks,  and  during 

that  could  be  cited  at  the  present  the  forenoon  of  Monday  he  seemed 

writing.     It  appears  that  Mary  Mc-  bewildered,  walked  the  halls  on  the 

Hugh,  the  plaintiff,  brougiit  suit  to  floor  on   which    his   room  was  situ- 

recover  damages  for  the  loss  of  her  ated.  and  about  the  middle  of  the 

husband,  alleging  that  his  death  was  day    the    housekeeper    rei^orted    to 

caused  by  theimproi^erconductof  the  the  proprietor  that    he  was  ovit  of 

innkeepers.     McHugh,  her  deceased  his  room  and  was  sitting,  partially 

husband,  came  to  tlie  hotel  of  the  de-  dressed,  on  the  side  of  the  bed  in 

fendants    late   at    night,  registered,  another  room.     The  proprietor  and 

was  assig'ied  to  and  paid  for  a  room  his  porter  started  in  search  of  ]\Ic- 

for  the  night,  and  retired.     On  the  Hugh,  and  the  proprietor  seemed  to 

followingday  he  complained  of  being  have  exhibited  some  excitement  or 

313 


§  345.]  INNKEEPERS BOARDING-HOUSE    KEEPERS.       [PART    III. 


and  could  have  received  him,  and  on  account  of  it  the  guest 
suffered  great  bodily  harm.  In  the  case  of  Rex  v.  Ivens"^  it 
was  held  that  an  indictment  lies  against  an  innkeeper  who  re- 
fuses to  receive  a  guest,  he. having  room  in  his  house  at  the 


anger.  When  found,  and  when  the 
porter  was  leading  him  to  his  room, 
the  proprietor  said  that  he  could  not 
stay  any  longer,  and  on  reaching  the 
room  the  porter  put  his  coat,  hat  and 
shoes  on  him,  led  him  to  the  freight 
elevator,  put  him  on  it  and  let  him 
down  to  the  ground  floor.  He  took 
him  through  a  back  room  into  the 
alley  and  led  him  into  the  alley. 
Rain  was  falling  and  the  day  was 
cold.  A  stream  of  water  and  melt- 
ing snow  was  running  down  the 
alley.  McHugh  was  without  over- 
shoes, overcoat,  or  wraps  of  any  de- 
scription. When  the  porter  was 
taking  him  down  the  alley  he  fell 
to  the  pavement.  Soon  after  he 
was  discovered,  having  j-aised  up, 
leaning  heavily  against  the  wall  of 
the  hotel,  but  apparently  vinable  to 
step,  the  porter  behind  him  urging 
him  forward.  An  officer  found  them 
in  this  situation,  and  at  once  sent 
for  an  ambulance;  during  the  time, 
however,  that  he  was  going  after  the 
ambulance,  the  sick  man  laid  in  the 
snow  and  water.  He  was  taken  to 
the  hospital,  but  when  they  arrived 
all  signs  of  life  had  disappeared.  In 
such  case  it  was  held  that  the  de- 
fendants, the  innkeepers,  were  liable 
in  damages. 

17  Car.  &P.  578. 

"Godson,  for  the  defendant:  Does 
your  lordship  think  that  an  indict- 
ment lies  against  an  innkeeper  for 
refusing  to  receive  a  guest?  I  know 
that  an  action  may  be  bi'ought 
against  him  if  he  does  so;  and  such 
an  action  was  brought  against  an 
innkeeper  at  Lancaster  a  few  years 
ago.  This  is  only,  at  most,  a  private 
injury  to  Mr.  Williams,  and  not  an 
offense  against  the  public. 


"Coleridge,  J.:  There  can  be  no 
doubt  that  this  indictment  is  sus- 
tainable in  point  of  law.  Mr.  Ser- 
jeant Hawkins  distinctly  lays  it 
down  that  an  indictment  lies  for 
this  offense.    .    .    . 

"Coleridge,  J.  (in  summing  up): 
The  facts  in  this  case  do  not  appear 
to  be  much  in  dispute;  and  though 
I  do  not  recollect  to  have  ever  heard 
of  such  an  indictment  having  been 
tried  before,  the  law  applicable  to 
this  case  is  this:  that  an  indictment 
lies  against  an  innkeeper  who  re- 
fuses to  receive  a  guest,  he  having  at 
the  time  room  in  his  house;  and 
either  the  price  of  the  guest's  enter- 
tainment being  tendered  to  him,  or 
such  circumstances  occurring  as  will 
dispense  with  that  tender.  This  law 
is  founded  in  good  sense.  The  inn- 
keeper is  not  to  select  his  guests.  He 
has  no  right  to  say  to  one,  j^ou  shall 
come  into  my  inn,  and  to  another 
you  shall  not,  as  every  one  coming 
and  conducting  himself  in  a  proper 
manner  has  a  right  to  be  received; 
and  for  this  purpose  innkeepers  are 
a  sort  of  public  servants,  they  having 
in  return  a  kind  of  privilege  of  en- 
tertaining travelers,  and  supplying 
them  with  what  they  want.  It  is 
said  in  the  present  case  that  Mr. 
Williams,  the  prosecutor,  conducted 
himself  impropei'ly,  and  therefore 
ought  not  to  have  been  admitted  into 
the  house  of  the  defendant.  If  a 
person  came  to  an  inn  drunk,  or  be- 
haved in  an  indecent  or  improper 
manner,  I  am  of  opinion  that  the 
innkeeper  is  not  bound  to  receive 
him.  .  .  .  It  is  next  said  that  he 
came  to  the  inn  at  a  late  hour  of  the 
night,  when  probably  the  family 
were  gone  to  bed.    Have  we  not  all 


3U 


CH.  II.] 


GUESTS. 


[§  34G. 


time;  and  that  it  is  not  necessary  for  the  guest  to  tender  the 
price  of  his  entertainment  if  his  rejection  is  not  on  that  ground. 
And  it  is  no  defense  for  the  innkeeper  that  the  guest  was 
traveling  on  Sunday,  and  arrived  at  the  inn  after  the  inn- 
keeper's family  had  gone  to  bed;  nor  is  it  any  defense  that 
the  guest  refused  to  tell  his  name  and  abode,  as  the  innkeeper 
had  no  right  to  insist  upon  knowing  these  particulars;  but  if 
the  guest  come  to  the  inn  drunk,  or  behave  in  an  indecent  or 
improper  manner,  the  innkeeper  is  not  bound  to  receive  him. 
§346.  May  refuse  to  receive  or  to  entertain,  when, — From 
what  has  already  been  said,  it  follows  that  an  innkeeper  will 
be  protected  in  refusing  to  admit  certain  persons  into  his  inn, 
and,  if  they  have  once  been  admitted,  in  turning  them  out; 
or,  in  some  cases,  taking  them  to  a  place  where  they  can  be 


knocked  at  inn  doors  at  late  hours  of 
the  night,  and  after  the  family  have 
retired  to  rest,  not  for  the  pur- 
pose of  annoyance,  but  to  get  the 
people  up  ?  In  this  case  it  further 
appears  that  the  wife  of  tiie  defend- 
ant has  a  conversation  with  the 
prosecutor,  in  which  she  insists  in 
knowing  his  name  and  abode.  I 
think  that  an  innkeei^er  has  no  right 
to  insist  in  knowing  those  particu- 
lars; and  certain! J'  you  and  I  would 
think  an  innkeeper  very  imperti- 
nent who  asked  either  the  one  or 
the  other  of  any  of  us.  However, 
the  prosecutor  gives  his  name  and 
residence;  and  supposing  that  he 
did  add  the  words  'and  be  damned 
to  you,'  is  that  a  sufficient  reason  for 
keeping  a  man  out  of  an  inn  who 
has  traveled  till  midnight?  I  think 
that  the  prosecutor  was  not  guilty  of 
such  misconduct  as  would  entitle 
the  defendant  to  shut  him  out  of  his 
house.  It  has  been  strongly  objected 
against  the  prosecutor  by  Mr.  God- 
son, that  he  had  been  traveling  on  a 
Sunday.  To  make  that  argiunent  of 
no  avail,  it  must  be  contended  that 
traveling  on  a  Sunday  is  illegal.  It 
is  not  so,  although  it  is  what  ought 
to  be  avoided  whenever  it  can  be. 


.  .  .  With  respect  to  the  non- 
tender  of  money  by  the  prosecutor, 
it  is  now  a  custom  so  universal  with 
innkeepers  to  trust  that  a  person  will 
pay  before  he  leaves  an  inn,  that  it 
cannot  be  necessary  for  a  guest  to 
tender  money  before  he  goes  into  an 
inn.  .  .  .  And  the  opinion  which 
I  have  formed  is,  that  the  lateness 
of  the  hour  is  no  excuse  to  the  de- 
fendant for  refusing  to  receive  the 
prosecutor  into  hisinn.  Whyare  inns 
established?  For  the  reception  of 
travelers,  who  are  often  very  far  dis- 
tant from  their  own  homes.  Now, 
at  what  time  is  it  most  essential  that 
travelers  should  not  be  denied  ad- 
mission into  the  inns?  1  should  say 
when  they  are  beniglited,  and  when, 
from  any  casualty,  or  from  the  bad- 
ness of  the  roads,  they  arrive  at  an 
inn  at  a  very  late  hour.  Indeed,  in 
former  times  when  the  roads  were 
much  worse,  and  were  much  infested 
with  robbers,  a  late  hour  of  the  night 
was  the  time,  of  all  others,  at  which 
the  traveler  most  required  to  be  re- 
ceived into  an  inn.  I  think,  there- 
fore, that  if  the  traveler  conduct 
himself  properly,  the  innkeeper  is 
bound  to  admit  him,  at  whatever 
hour  of  the  night  he  may  arrive." 


J15 


§§  347-S.]       INNKEEPERS BOARDING-HOUSE    KEEPERS.       [PART    III. 

suitably  and  properly  cared  for;  and  this  in  all  cases  may  not 
be  considered  simply  as  the  right  or  privilege  of  the  innkeeper, 
but  his  duty  —  a  duty  he  owes  to  the  other  guests  of  his  house, 
to  whom  he  would  be  liable  if  he  should  refuse  to  so  act.  Some 
examples  are  noted  in  the  following  p;iragraphs.  It  would, 
however,  be  impossible  to  discuss  every  case  which  would  fall 
within  what  has  just  been  mentioned. 

§  347.  When  a  guest  is  taken  ill  with  contagions  disease. — 
"We  havealready  noticed  that  the  innkeeper  would  be  liable  to 
his  guests  if  he  received  them  within  his  inn  whereat  the  same 
time  he  was  harboring  a  person  afflicted  with  a  contagious  dis- 
ease, without  giving  notice  to  the  guests  admitted.  It  therefore 
follows  that  he  would  have  the  right  to  rid  his  inn  of  such  a  per 
son  in  order  that  he  might  carry  on  his  business  as  an  inn- 
keeper. Where  the  person,  however,  has  become  ill  with  the 
contagious  disease  after  having  been  admitted  as  a  guest,  the 
duty  of  the  innkeeper  toward  him,  by  way  of  removing  him 
from  the  inn,  is  a  very  particular  one.  It  has  been  held  that 
he  "has  the  right  to  remove  him,  after  notice,  in  a  careful  and 
becoming  manner  and  at  an  appropriate  hour,  to  a  hospital  or 
other  place  of  safety,  provided  the  life  of  the  guest  is  not  im- 
paired thereby.*'  ^  This  right,  however,  to  remove  a  guest 
would  not  apply  to  one  who  was  afflicted  with  other  illness 
than  that  which  is  contagious,  even  though  the  illness  was  a 
disturbance  and  an  annoyance  to  the  other  guests.  The  inn- 
keeper in  such  case  would  not  be  justified  in  removing  him  ex- 
cept in  a  manner  suited  to  his  condition.^ 

§  348.  Disorderly  condnct. —  For  disorderly  conduct  the 
innkeeper  may  refuse  to  receive  a  guest,  and  it  is  his  duty  to 
not  only  refuse  to  receive  him  but  even  to  expel  him  from 
his  inn,  if  after  having  been  received  he  becomes  disorderly. 
This  would  apply  to  drunken  and  disorderly  persons,  as  already 
noticed,  and  it  has  been  held  that  it  also  applies  to  those  who 
are  in  such  a  filthy  condition  as  to  annoy  the  guests  of  the 
place,  for  filthiness  of  person  is  disorderly.^  But  mere  appre- 
hension of  insult  is  not  sufficient  reason  for  refusal.*    An  Eng- 

1  Levi  V.  Corey,  1  City  Ct.  (N.  Y.)        SMarkham  v.  Brown,  8  N.  H.  523. 
Sup.  57.  *  Atwater  v.  Sawyer,  76  Ma  539. 

-  McHugh  V.  Sclilosser,  159  Pa.  St. 
480,  39  Am.  St.  Rep.  699. 

316 


CH.  II.]  GUESTS.  [§  348, 

lish  case,  however,  has  gone  so  far  as  to  hold  that  a  guest  might 
be  refused  entertainment  where  his  conduct  was  offensive  to 
the  other  guests,  in  that  he  had  been  in  the  habit  of  coming 
into  the  inn  with  several  large  dogs  which  were  annoying  to 
those  stopping  at  the  inn,  and  where  he  persisted  in  bringing 
these  animals  into  the  inn  notwithstanding  the  objections  of 
the  innkeeper.^  From  these  examples  and  cases  cited  it  will 
be  noticed  that  there  must  necessarily  rest  with  the  innkeeper 
a  very  large  discretion  which  he  is  required  to  exercise  with 
reasonably  careful  judgment,  and  that  each  case  must  neces- 
sarily depend  upon  its  own  particular  facts.  It  would  be  dif- 
ficult, indeed,  to  lay  down  any  fixed,  settled  rule  which  would 
in  all  cases  determine  the  rights  and  duties  of  the  innkeeper  in 
receiving  guests  into  his  hotel,  and  in  defining  and  stating  his 
right  to  exclude  them  or  refuse  them  further  entertainment. 

1  Eeg.  V.  Reymer,  2  Q.  B.  D.  136. 
317 


CHAPTEE  III. 


LIABILITY. 

(1)  Of  the  Innkeeper,    (2)  Of  the  Guest. 


§  349.  Liable  as  an  innkeeper. 

350.  The  extraordinary  liability  on 

grounds  of  public  policy. 

351.  Liability  and  exceptions  ana- 

lyzed. 

352.  Where  the  loss  is  occasioned 

by  accidental  fire  and  not 
in  any  way  the  result  of 
fault  or  neglect  of  the  inn- 
keeper. 

353.  By  act  of  God  or  tlie  public 

enemy. 

354.  By  irresistible  force  without 

negligence  or  fault  on  the 
part  of  the  innkeeper, 

355.  Forcible  robbery,  riots,  etc. — 

Diligence. 

356.  If  the  loss  is  occasioned  by 

force  from  within. 

357.  By  reason  of  the  inherent  nat- 

ure of  the  property. 

358.  Through  the  fault  of  the  guest, 

his  servants  or  compan- 
ions. 


§  359.  Reasonable  regulations  of  the 
inn. 

360.  For  what  property  liable. 

361.  Must  be  a  guest  of  the  inn  and 

the  property  within  the  inn. 

362.  Infra  hospitium. 

363.  L9st  by  theft. 

364.  If  a  boarder,  not  a  guest. 

365.  Property  of  a  third  person. 

366.  Liable  to  corporation  for  loss 

of  agent's  goods. 

367.  Exception  —  Goods  for  sale  or 

show. 

368.  Liability  for  personal  injuries 

to  guests. 

369.  Defective  or  unsound  condi- 

tion of  the  premises 

370.  Injuries  from  fire. 

371.  Unsanitary  condition   of  the 

inn  and  unwholesome  food. 

372.  Limiting  liability. 

373.  Innkeeper  liable  as  ordinary 

bailee. 

374.  Liable  as  gratuitous  bailee. 


§  349.  Lial)le  as  an  iniilieeper. —  If  we  were  to  follow  the 
rule  governing  the  liability  of  an  ordinary  bailee,  a  bailment 
for  the  benefit  of  both  parties,  which  that  of  an  innkeeper 
would  seem  to  be,  we  could  readily  determine  the  duty  of  the 
innkeeper  as  being  that  of  ordinary  diligence  and  his  liability 
as  being  for  ordinary  negligence.  But  it  will  be  remembered 
that  this  is  an  exceptional  bailment  and  not  an  ordinary  bail- 
ment; that,  except  as  modified  by  statute,  the  liability  is  an 
extraordinary  liability,  the  common-law  liability  being  that  of 
an  insurer,  or,  as  it  is  sometimes  said,  in  the  nature  of  an  insurer. 
It  may  be  said,  however,  that  the  authorities  are  by  no  means 
harmonious  upon  this  subject.    While  it  seems  to  be  quite  well 


Oil     III. J 


LIABILITY. 


[§  349. 


settled  that  the  common-law  liability  of  an  innkeeper  is  in  the 
nature  of  an  insurer,  the  courts  have  deviated  more  or  less 
from  that  rule  in  their  discussion  of  the  principle,  and  have 
virtually  placed  themselves  within  one  of  three  classifications. 

(1)  "That  the  innkeeper  \^ jprima facie  liable  for  the  loss  of 
goods  in  his  charge,  but  may  discharge  himself  by  showing 
that  the  goods  were  not  lost  by  his  negligence  or  default." 

(2)  "That  the  innkeeper  is  discharged  by  showing  that  the 
loss  or  injury  was  the  result  of  inevitable  accident  or  irresistible 
force,  though  not  amounting  to  what  the  law  denominates  the 
act  of  God,  and  not  attributable  to  the  public  enemy." 

(3)  "  That  the  innkeeper  is  liable  unless  the  loss  was  caused 
by  the  act  of  God  or  the  public  enemy,  or  by  the  fault,  direct 
or  implied,  of  the  guest."  ^ 


1  Sibley  v.  Aldrich,  33  N.  H.  553-63. 
In  this  case  the  court  has  gathered 
together  very  many  of  tiie  leading 
cases  upon  this  subject  at  the  time 
of  its  decision,  and  lias  discussed 
with  gi*eat  ability  the  English  rules 
then  extant,  citing  in  the  opin- 
ion Dawson  v.  Channey,  5  A.  &  E. 
(N.  S.)  165,  where  it  was  held  that 
when  goods  had  been  deposited  in  a 
public  inn  and  there  lost  or  injured, 
the  presumption  is  that  the  loss  or 
damage  was  caused  by  the  negli- 
genceof  the  innkeeperor  his  servants, 
but  that  this  presumption  may  be  re- 
butted, and  if  the  jury  find  in  favor 
of  the  innkeeper  as  to  negligence  he 
is  entitled  to  succeed  on  a  plea  of  not 
guilty.  And  in  Metcalf  v.  Hess.  14 
III.  13 ), where  it  was  held  that  the  inn- 
keeper might  discharge  himself  by 
showing  that  the  loss  happened  with- 
out any  default  on  his  part.  In  Mer- 
rill V  Claghorn,  83  Vt.  177,  it  was 
held  that  the  innkeeper  could  not  be 
held  where  the  property  was  lost  by 
fire,  occasioned  by  inevitable  or  su- 
perior force  and  without  any  negli- 
Hgence  on  his  part.  And  in  Kesten 
v.  Hildebrand,  D  B.  Monroe,  78,  where 
it  was  held  that  the  innkeeper  "  is  not 
liable  for  a  loss  by  external  force  or 


robbery,  or  if  the  loss  occur  by  the 
neglect  of  the  guest  or  his  servants  or 
companions.''  The  court  in  the  same 
case  collects  authorities  to  the  point 
that  the  innkeeper  cannot  discharge 
himself  by  showing  that  the  loss  did 
not  happen  by  his  default,  but  that 
he  must  go  further  and  show  that  it 
was  caused  by  the  default,  direct  or 
implied,  of  the  owner;  citing  3  Kent's 
Com.  574,  where  it  was  said:  "An 
innkeeper,  like  a  common  carrier,  is 
an  insurer  of  the  goods  of  his  guests 
and  can  only  limit  his  liability  by  ex- 
press agreement  or  notice."  And 
Richmond  v.  Smith,  8  B.  &  C.  9, 
where  Lord  Tenterden  says:  "  It  is 
clear  thc-t  at  common  law  when  a 
traveler  brings  goods  to  an  inn  the 
landlord  is  responsible  for  them.  In 
this  respect  I  think  the  situation  of 
the  landlord  was  precisely  analogous 
tothat  of  the  common  carrier.  Bailey, 
J.,  in  the  same  case  says:  "  It  appears 
to  me  that  an  innkeepers  liability 
veiy  closely  resembles  that  of  a  com- 
mon carrier."  Also  citing  Kent  v. 
Shack  ford,  3  B.  &  Aid.  803;  Mason  v. 
Thomp.son.  9  Pick.  880;  Shaw  v.  Berry, 
31  Me.  478.  where  it  was  helii  Hiat  to 
discharge  an  innkeeper  from  liability 
for  the  loss  of  the  goods  in  his  cliarge, 
19 


§  349.]  INNKEEPERS BOAEDING-HOUSE    KEEPERS.       [PAKT    III. 

One  of  the  most  extreme  cases  in  this  country  and  hold- 
ing to  the  most  extreme  doctrine  as  to  liability  is  that  of 
Hulett  V.  Sicift^  where  the  court  of  appeals  in  ZSTew  York  held 
that  an  innkeeper  is  an  insurer.  In  that  case  the  plaintiff's 
servants  put  up  at  the  defendant's  inn,  the  innkeeper  taking 
charge  of  and  stabling  the  plaintiff's  horse,  his  wagon  and  a 
load  of  buckskin  goods.  The  plaintiff  in  the  court  below  ob- 
tained judgment  for  the  full  value  of  the  property  upon  the 
ground  that  the  defendant  innkeeper  was  an  insurer  of  the  prop- 
erty of  his  guest  placed  in  his  custody.  The  court  of  appeals 
affirmed  the  case.  Porter,  J.,  in  rendering  the  opinion  of  the 
court  said :  "An  innkeeper  is  responsible  for  the  safe-keeping 
of  property  committed  to  his  custody  by  a  guest.  He  is  an  in- 
surer against  loss,  unless  caused  by  the  negligence  or  fault  of 
the  guest,  or  by  the  act  of  God  or  the  public  enem}^"  This 
liability  is  recognized  in  the  common  law  as  existing  by  the 
ancient  custom  of  the  realm,  the  judges  in  Calye's  Case  treat- 
ing the  recital  in  the  special  writ  for  its  enforcement  as  con- 
trolling evidence  of  the  nature  and  extent  of  the  obligation 
imposed  by  law  upon  the  innkeeper.  The  court  in  discussing 
the  liability  of  innkeepers  puts  it  upon  the  ground  of  public 
policy,  saying  that  it  had  its  origin  in  considerations  of  pub- 
lic policy;  that  it  was  essential  to  the  interests  of  the  realm;  and 
that  every  facility  should  be  furnished  for  securing  convenient 
intercourse  between  different  portions  of  the  kingdom;  holding 
that  to  all  intents  and  purposes  the  same  rules  of  liability  apply 
to  innkeepers  that  apply  to  common  carriers,  and  that  in 
the  case  of  loss  either  the  innkeeper  or  the  guest  must  be 
the  sufferer,  and  that  the  common  law  furnished  the  solution 
of  the  question  on  which  of  them  it  should  properly  fall,  and 
quotes  the  following:  "In  Cross  v.  Andrews'^  the  defendant,  if 

it  is  not  sufficient  for  him  to  show  like    the    common    carrier,    is    by 

that  the  loss  did  not  happen  by  his  common  law  an  insurer.    Purvis  v. 

neglect  or  default,  but  that  he  must  Coleman,  21  N.  Y.  111-117;  "Wells  v. 

go  further  and  show  that  it  happened  Steam  Navigation  Co.,  2  Comst.  204; 

by  the  fault,  direct  or  indirect,  of  the  Gile  v.  Libbey.  36  Barb.  TO;  Ingelsby 

owner.  v.  Wood.  36  Barb.  458;  Taylor  v.  Mon- 

133  N.  Y.  571.  not,  4  Duer,  117;  GrinneU  v.  Cook,  3 

2  Croke's  Eliz.,  622.      In  the  courts  Hill,  488;  Piper  v.  Mann3%  21  Wend, 

of  New   York  it  has   been  held  in  282;  1  Pars,  on  Contracts.  623;  Shaw 

very  many  cases  that  the  innkeeper,  v.  Perry,  31  Me.  478;  Gilbert  v,  Ald- 

320  • 


CH.  III.]  LIABILITY.  [§  349. 

he  keep  an  inn,  ought  at  his  peril  to  keep  safely  his  guest's 
goods;"  and  further  remarking  that  "he  must  guard  them 
against  the  incendiary,  the  burglar  and  the  thief,  and  he  is 
equally  bound  to  respond  for  the  loss,  whether  caused  by  his 
own  negligence  or  by  the  depredations  of  knaves  and  maraud- 
ers within  or  without  the  curtilage; "  quoting  also  a  long  list  of 
New  York  authorities  that  uphold  this  doctrine;  also  author- 
ities from  some  of  the  other  states. 

It  may  be  said  that,  foUonving  this  case,  the  legislature  of  the 
state  of  JSTew  York  saw  fit  to  pass  a  law  modifjang  the  liabil- 
ity of  the  innkeeper. 

The  supreme  court  of  Michigan  in  Cutler  v.  Bonney}  involv- 
ing nearly  the  same  state  of  facts,  took  a  different  and  more 
liberal  view  of  the  law,  and  in  the  opinion  discuss  the  case  of 
Ilulett  V.  Swift.  In  the  Michigan  case,  plaintiff  brought  suit 
to  recover  the  value  of  a  certain  horse,  wagon  and  goods  de- 
stroyed by  fire  in  the  barn  of  the  defendant,  an  innkeeper.  It 
was  found  by  the  court  that  the  iire  was  not  caused  by  the  fault 
of  defendant  or  his  servants,  and  the  question  was  as  to  the  lia- 
bility of  the  innkeeper  to  respond  in  damages  for  the  loss  to 
the  guest.  Campbell,  J.,  rendered  the  opinion,  and  in  the  course 
of  it  used  these  words :  "  In  order  to  hold  a  bailee  liable  for 
that  which  is  in  no  respect  to  be  imputed  either  to  his  own 
negligence,  or  to  that  of  persons  for  whom  he  is  responsible, 
there  should  be  found  clear  authority.  The  common  law  has 
declared  this  liability  against  one  class  of  bailees,  and  has  made 
common  carriers  responsible  for  all  losses  not  caused  by  the 
public  enemies,  or  some  casualty  in  no  way  arising  out  of  hu- 
man action.  It  is  claimed  by  plaintiffs  that  in  this  respect 
common  carriers  and  innkeepers  stand  on  precisely  the  same 
footing;  and  it  is  not  claimed  that  defendants  can  be  made 
liable  in  the  present  case  on  any  narrow  ground.  There  are 
many  cases  in  which  it  has  been  said  by  judges  that  the  liabil- 
ity is  not  distinguishable.  Most  of  these  have  been  collected 
in  the  notes  of  Mr.  Holmes  to  the  last  edition  of  Kent's  Com- 
mentaries. 2  Kent,  596.  But  except  in  the  decisions  to  be 
especially  referred  to  hereafter,  there  is  nothing  in  the  facts  of 

rich,  33  N.  H.  533;  Berkshire  Woolen        1 30  Mich.  259. 
Co.  V.  Proctor,  7  Cush.  427;  Mason  v. 
Thompson,  9  Pick.  280. 

21  321 


§  349.]  INNKEEPERS BOARDING-HOtSE    KEEPERS.       [PART   III. 

any  authority  which  we  have  discovered  which  called  for  any 
such  remark,  or  which  would  justify  the  enforcement  of  a  lia- 
bility for  such  a  loss  as  the  present.  With  one  or  two  excep- 
tions the  cases  referred  to  have  arisen  from  thefts  or  unex- 
plained losses  of  property,  while  it  was  within  the  legal  cus- 
tody or  protection  of  the  innkeeper.  The  rule  actually  applied 
in  all  these  cases  has  been  that  all  such  losses  were* presumably 
due  to  the  neglect  of  the  innkeeper.  Generally,  and  perhaps 
universally,  he  has  been  held  to  an  absolute  responsio.lit}'  for 
all  thefts  from  within,  or  unexplained,  whether  committed  by 
guests,  servants  or  strangers.  But  he  has  quite  as  uniformly 
been  discharged  by  any  negligence  of  the  guest  conducing  to 
the  injury,  and  he  has  not  been  held  for  acts  done  b}^  the  serv- 
ants of  guests,  or  by  those  whom  they  have  admitted  into  their 
rooms.  And  in  many  cases  it  has  been  held  discharged  where 
the  guest  has  exercised  any  special  control  over  his  property. 
The  general  principle  seems  to  be  that  the  innkeeper  guaran- 
tees the  good  conduct  of  all  persons  whom  he  admits  under  his 
roof,  provided  his  guests  are  themselves  guilty  of  no  negligence 
to  forfeit  the  guaranty.  Beyond  this  we  have  found  no  decided 
case  anywhere.  "We  have  found  no  decision  holding  innkeep- 
ers liable  for  losses  by  purely  accidental  casualties,  or  from 
riots,  or  acts  of  force  from  without,  such  as  have  been  from  the 
beginning  excepted  by  the  text-writers.  These  writers,  or  at 
least  such  of  them  as  are  of  recognized  authority,  have  drawn 
a  line  between  carriers  and  innkeepers,  resting  on  the  distinc- 
tion between  absolute  and  qualified  responsibility.  And  none 
of  the  accepted  writers  have  found  any  authority  for  disre- 
garding this  distinction.  The  two  classes  of  bailees  have  been 
kept  carefully  separate.  .  .  .  The  common  law  has  in  some 
things  been  modified  by  decisions,  but  it  is  contrary  to  law  to 
follow  dicta  made  in  cases  calling  for  no  departure  from  the 
old  law.  It  would  be  a  manifest  innovation  to  create  a  liabil- 
ity where  no  possible  default  exists,  and  to  sustain  such  an  in- 
novation there  ought  to  be  both  reason  and  authority.  We 
cannot  object  to  follow  settled  law  on  our  own  views  of  what 
policy  ought  to  make  it.  But  we  are  not  prepared  to  assume 
there  is  any  policy  which  will  compel  persons  who  are  in  no- 
wise in  fault  to  respond  in  damages,  where  the  law  is  not  clear 
against  them.     And  the  authorities  directly  in  point  on  losses 

322 


CH.  III.]  LIABILITY.  [§  350. 

by  fire  are  not  numerous,  and  do  not,  in  our  judgment,  call  for 
any  such  consequences.  The  doctrine  imposing  such  a  liabil- 
ity may  be  said  to  rest  entirely  on  what  was  said  by  Justice 
Porter  in  Hulett  v.  Swift,  33  N.  T.  571.  In  that  case  the  sub- 
ject is  discussed  at  some  length  and  with  much  ability.  But 
no  foundation  is  shown  there  for  the  doctrine  asserted,  beyond 
remarks  which  are  confessedly  opposed  to  the  text-books,  and 
which  were  foreign  to  what  was  actually  decided  in  the  cases 
where  they  are  found.  The  whole  opinion  of  the  learned  judge 
is  open  to  the  same  criticism,  as  he  himself  declares  the  point 
discussed  did  not  really  arise,  inasmuch  as  no  proof  was  intro- 
duced changing  the  presumption  raised  by  law  against  the  de- 
fendant. The  opinion  was  not  unanimous,  and  the  dissent  of 
Judge  Denio  would  detract  much  from  its  force,  even  if  it  had 
been  pertinent  to  the  facts.  Opposed  to  this  is  the  case  of 
Merrill  v.  Claghom,  23  Vt.  177,  in  which  Judge  Kedfield,  de- 
livering the  opinion  of  the  court,  reached  the  conclusion  that 
where  there  was  no  negligence  there  was  no  responsibility  for 
loss  by  fire.  This  opinion  is  an  able  one,  and  was  not  given 
beyond  the  facts.  It  has  been  both  approved  and  criticised, 
but  no  occasion  has  heretofore  arisen  to  consider  its  correctness 
upon  similar  facts.  Vance  v.  Throclimortcm,  5  Bush  (Ky.),  42, 
is  to  the  same  effect,  but  there,  too,  the  decision  might  have 
rested  on  other  grounds,  and  its  authority  is  therefore  dimin- 
ished. "We  regard  the  decision  in  Vermont  as  reasonable,  and 
as  within  the  fair  meaning  of  the  common-law  rule." 

§  350.  The  extraordinary  liability  on  grounds  of  public 
policy. —  It  was  upon  the  ground  of  public  policy  that  the 
Romans  declared  by  praetor's  edict  that  if  ship-masters,  inn- 
keepers and  stable-keepers  did  not  restore  what  they  had  re- 
ceived to  keep  safe,  he  would  give  judgment  against  them. 
The  reason  assigned  for  this  edict  was  that  it  was  necessary  to 
place  confidence  in  such  persons  and  to  commit  the  custody 
of  things  to  them,  and  unless  the  rule  was  thus  established  an 
opportunity  would  be  afforded  to  them  to  combine  with  thieves 
against  those  who  trusted  them,  whereas  they  now  had  an  in- 
ducement to  abstain  from  such  combinations.  Tiiere  is  no 
doubt  that  in  the  case  of  innkeepers  public  policy  demands  a 
very  high  degree  of  diligence.  The  guest  who  is  a.  transient 
or  traveler  is  not  supposed  to  know  of  the  surroundings  in 

323 


§§  351-2.]       IiraXEEPEES BOAKDING-HOUSE    KEEPERS.      [PAET    III. 

which  he  is  placed;  he  puts  himself  entirely  in  the  hands  of 
the  innkeeper  or  his  servants;  he  depends  upon  him  for  the 
safe-keeping  of  himself  and  his  property.  At  night  he  takes 
the  room  that  is  assigned  him;  he  sleeps  and  depends  upon 
the  innkeeper  to  watch  over  him  and  his  property ;  and  because 
of  this  utter  dependence  the  law  says,  and  public  policy  de- 
mands, that  the  innkeeper  shall  be  to  him  as  an  insurer,  and 
so  the  law  protects  the  guest  by  holding  that  the  innkeeper 
shall  be  so  liable. 

§  351.  Liability  and  exceptions  analyzed. —  From  what  has 
already  been  said,  and  from  the  authorities  examined,  it  may 
be  determined  that  the  common-law  liability  of  an  innkeeper 
for  the  property  of  his  guest  is  that  of  an  insurer,  modified, 
however,  by  the  following  exceptions: 

(1)  Where  the  loss  is  occasioned  by  accidental  fire,  and  is^ 
not  in  any  way  the  result  of  the  fault  or  neglect  of  the  inn- 
keeper. 

(2)  By  the  act  of  God  or  the  public  enemy. 

(3)  By  irresistible  force,  without  negligence  or  fault  of  the 
innkeeper. 

(4)  By  reason  of  the  inherent  nature  of  the  property. 

(5)  Through  the  fault  of  the  guest,  his  servants  or  compan- 
ions. 

§  352.  (1)  Where  the  loss  is  occasioned  by  accidental  fire 
and  not  in  any  way  the  resnlt  of  fault  or  neglect  of  the  inn- 
keeper.—  The  authorities,  as  we  have  seen,  are  by  no  means 
harmonious  upon  this  question,  and  it  is  somewhat  difficult  to 
say  where  the  weight  of  authority  is.  Some  jurisdictions  have 
held  that  the  innkeeper  is  an  insurer  of  the  property  of  the 
guest  which  is  placed  in  his  hands  for  safe-keeping  during  the 
time  the  guest  remains  in  the  inn,  and  that  the  innkeeper  can 
only  be  excused  when  the  loss  of  such  property  is  occasioned 
by  the  act  of  God,  the  public  enemy  or  the  fault  of  the  guest. 
There  is,  however,  a  long  line  of  authority  holding  with  the 
case  of  Cutler  v.  Bonney^  from  which  we  have  quoted,  that 
Avhere  the  loss  was  the  result  of  an  accidental  fire  and  in 
no  wise  attributable  to  the  negligence  or  fault  of  the  inn- 
keeper, he  is  not  liable;  and  it  would  seem  that  the  tendency 
of  the  courts  is  to  hold  to  this  doctrine  and  to  enlarge  the 
limitations  of  the  rule  fixing  the  liability  of  the  innkeeper 

324 


CH.  III.]  LIABILITY.  [§  352. 

rather  than  to  hold  to  the  severity  of  it.  In  a  case  where  it 
can  be  said  that  there  is  no  fault  or  negligence  on  the  part  of 
the  innkeeper,  that  the  loss  was  purely  and  solely  attributable 
to  accidental  fire,  to  hold  the  innkeeper  liable  would  be  to  say 
that,  for  the  fault  or  acts  of  other  persons  over  whom  he  has 
no  control  whatever,  he  must  answer  in  damages.  It  would 
seem  that  such  a  rule  would  have  no  foundation  in  principle, 
and  only  rests  in  arbitrary  and  unreasonable  dicta.  It  can 
hardly  be  said  that  it  is  demanded  by  that  rule  of  public 
policy  that  has  imposed  t!he  extraordinary  liability  upon  the 
innkeeper,  for  it  is  not  the  result  of  any  fraud  or  collusion  on 
his  part.  It  was  not  brought  about  in  order  that  he  might 
gain  by  it;  he  is  entirely  without  fault;  and  it  would  seem  that 
because  of  this  it  is  without  the  reason  of  the  rule,  and  there" 
fore  it  sliould  be  without  the  rule.  The  more  correct  rule,  it 
appears,  would  be  that  the  innkeeper  is  bound  to  exercise  ex- 
traordinary care, —  care  that  would  be  in  every  way  in  keeping 
with  the  great  and  important  responsibility  devolving  upon 
the  innkeeper,  having  in  view  the  fact  that  the  guest  has  sub- 
mitted to  him  the  care  of  his  life  and  his  property,  and  if 
loss  occurs  the  innkeeper  must  suffer  unless  he  can  show  that 
he  is  not  only  not  guilty  of  negligence,  but  that  he  has  exer- 
cised that  extraordinary  diligence  which  the  particular  case  and 
his  particular  business  demands.^ 

1  Cases  where  innkeepers  are  held  Cases  holding  that  the  innkeeper  is 

liable  when  loss  was  occasioned  by  not  liable  where  the  loss  is  not  occa- 

accidental  iire:  Pinkerton  v.  Wood-  sioned  by  any  fault  or  negligence  on 

ward, 38  Cal.  557;  Hay  v.  Pacific  Imp.  his  part:  I  aird  v.  Eichold,  10  Ind.  312, 

Co.,  93  Cal.  53,  held  liable  unless  oc-  71  Am.  Dec.  323;  Baker  v.  Dessaner, 

casioned  by  an  irresistible  superliu-  49  Ind.  28;  Hulbert  v.  Hartman,  79 

man  cause,  by  a  public  enemy,  by  111.  App.  289;  Johnston  v.  Richard- 

the  negligence  of  the  owner,  or  by  son,  17  111.  302,  63  Am.  Dec.  3(59  and 

the  act  of  some  one  whom  he  has  a  case  often  cited,  Vance  v.  Tluock- 

brought    into    the    inn.     Hulett    v.  morton,  5  Bush  (Ky.).  41,  90  Am.  Dec. 

Swift,  33  N  Y.  571;  Shaw  v.  Berry,  327,  48  Am.  Dec.  416;  Cutler  v.  Bon- 

31   Me.   478;  Richmond   v.    Smith,  8  ner,  30  Mich.  257;  Dunber  v.  Day,  13 

Barn.  &  Cres.  10;  Sibley  v.  Aldrich,  Neb.   596,    41  Am.    Rep.  772;    Howe 

33N.  H.553;  Mateer  v.  Brown,  1  Cal.  Machine  Co.    v.  Pease,   49  Vt.   477; 

228;    Manning  v.  Wells.  9   Humph.  Merritt    v.    Claghorn.    23    Vt.    177; 

764;  Thickstone  v.  Howard,  8  Blackf.  Fisher  v.  Kelsey,  121  U.  S.  383;  Burn- 

535;  Mason  V.  Thompson,  9  Pick.  283;  ham  v.  Young,  73  Me.   373.     In  the 

Berkshire  Woolen  Mills  v.  Proctor,  7  case  of  McDaniells  v.  Robinson,  26 

Cush.  427.  Vt.  316-335,  the  court  say:  "In  re- 

325 


§  353.]  INNKEEPERS BOAEDING-HOUSE    KEEPERS.       [PAET    III. 


§  353.  (2)  Bj'  act  of  God  or  the  public  enemy.— All  the  au- 
thorities concede  that  where  the  loss  occurred  by  reason  of  the 
act  of  God  or  the  public  enemy,  the  innkeeper  is  excused  from 
liabilit3^  To  this  there  is  no  necessity  of  citing  authorities; 
the  onl}^  question  in  such  cases  to  be  determined  is,  Was  the 
force  or  act  that  caused  the  loss  the  act  of  God  or  the  public 
enemy  ? 

An  act  of  God  has  been  defined  to  be  such  inevitable  acci- 
dent as  could  not  be  prevented  by  human  care,  skill  or  fore- 
sight, but  results  from  natural  causes,  such  as  lightning,  tem- 
pests, floods  and  inundations.^  The  public  enemy  in  this  con- 
nection applies  to  enemies  in  time  of  war  with  foreign  nations, 
or  to  pirates  who  are  considered  at  war  with  all  mankind,  but 
it  does  not  include  robbers,  thieves,  rioters  or  insurgents,  what- 
ever be  their  violence.  It  has  been  held,  however,  that  the 
Confederate  forces  during  the  time  of  the  rebellion  were  pub- 
lic enemies.^ 


gard  to  the  general  liability  of  an 
innkeeper  it  is  not  surprising  that 
the  law  should  still  be  so  indeter- 
minate. But  the  cases  are  fewer  and 
less  decisive  upon  this  important 
subject  than  might  have  been  ex- 
pected. Even  the  absurd  dictum  in 
Newton  V.  Trigg,  1  Showers,  269, 
where  Eyre,  J.,  says,  'they  (inn- 
keepers) may  detain  the  person  of 
the  guest  who  eats,'  has  been  con- 
stantly quoted  to  establish  the  exist- 
ence of  such  a  right  in  the  landlord, 
and  without  much  examination  (al- 
though the  point  decided  in  the  case 
is  whether  an  innkeeper  may  become 
a  bankrupt),  until  the  comparatively 
recent  case  of  Sunbolf  v.  Alford,  3 
M.  &  W.  247,  where  Lord  Abinger 
says:  'I  would  be  sorry  to  have  it 
thought  I  entertain  any  doubt  in 
this  case,  or  require  any  authority  to 
support  the  judgment  I  propose  to 
give,  that  no  such  right  to  detain  the 
person  of  the  guest  can  be  for  a  mo- 
ment tolerated  in  a  free  country. 
So,  too,  we  find  numerous  creditable 
judges,  and  some  decisions,  carrying 
the  liability  of  an  innkeeper  to  the 


full  extent  of  a  common  carrier,  and 
thus  making  him  an  insurer  against 
all  losses  not  caused  by  the  act  of 
God  or  the  public  enemy.  But  such 
is  clearly  not  the  general  course  of 
the  decis  ons  in  Westminster  Hall, 
and  that  extreme  responsibility  was 
expressly  repudiated  by  this  court. 
Merritt  v.  Claghorn,  23  Vt.  177.  It 
is  there  held  that  an  innkeeper  is 
not  liable  for  loss  of  goods  of  the 
guest  by  fire  from  without,  the  prob- 
able act  of  an  incendiary.and  without 
any  fault  or  negligence  on  his  part, 
or  on  the  part  of  any  inmate  of  the 
house.  But  we  have  never  intimated 
that  we  were  prepared  to  put  the 
liability  of  an  innkeeper  upon  the 
same  ground  as  that  of  other  bailees. 
On  the  contrary,  we  regard  it  as  well 
settled  that  the  liability  of  an  inn- 
keeper is  more  severe  than  that  of 
any  other  bailee,  with  the  single  ex- 
ception of  common  carriers."  See 
also  note  to  26  Vt.  342. 

1  Anderson's  Law  Diet.:  McHenry 
V.  Philadelphia  R.  Co.,  4  Hairr.  (Del.) 
441. 

2 Story    on    Bailments,    sec    526; 


326 


CH.  III.]  LIABILITY.  [§  354. 

§  354.  (3)  By  irresistible  force  without  negligence  or  fault 
on  the  part  of  the  innkeeper. — The  rule  is  established  by  the 
weight  of  authority,  that  where  there  is  an  absence  of  any 
fraud,  negligence  or  fault  on  the  part  of  the  innkeeper,  and 
the  loss  was  occasioned  by  irresistible  force  from  without  the 
inn,  the  innkeeper  is  not  liable.  The  rulings  upon  this  ques- 
tion have  been  gathered  from  the  reasoning  and  opinions  of 
courts  in  cases  holding  that  the  innkeeper  is  not  liable,  rather 
than  cases  where  the  question  of  liability  is  positively  de- 
cided. , 

The  good  judgment  of  men,  tempered  with  equal  and  exact 
justice,  would,  however,  dictate  such  a  rule,  and  it  cannot  be 
said  to  be  at  variance  with  the  result  of  the  more  rigid  rule 
that  makes  the  innkeeper  an  insurer  of  the  property  of  his 
guest,  which  law  was  said  to  rest  in  the  demands  of  public 
policy.  The  reason  for  that  rule  was  that  there  often  existed 
collusion  between  the  keeper  of  the  inn  and  those  who  were 
robbers  and  thieves  and  members  of  marauding  bands  who 
pillaged  and  robbed  the  guests  of  the  inn,  the  innkeeper  being 
equally  at  fault,  ?i particeps  criminis  with  those  who  perpetrated 
the  crime;  and  it  was  to  correct  this  fault  and  to  establish  a 
high  degree  of  diligence  to  punish  the  slightest  negligence 
that  the  extremely  rigid  rule  was  adopted ;  but  the  reason  for 
that  rule  does  not  exist  in  the  conditions  here  stated,  and  there 
is  no  reason  why,  in  a  case  where  the  innkeeper  is  in  no  wise 
at  fault,  and  where  he  is  entirel}'^  helpless  and  cannot  resist  or 
oppose,  where  the  force  is  actually  and  without  question  irre- 
sistible and  from  without  the  inn,  that  he  should  be  held  liable 
for  the  loss.  Indeed,  it  can  hardl}''  be  said,  as  we  have  already 
discovered,  that  the  innkeeper  was  at  any  time  considered  an 
absolute  insurer  of  the  property  of  the  guest.  His  liability 
could  always  be  more  or  less  limited,  if  not  entirely  removed, 
by  proof  of  lack  of  fault  or  fraud  or  negligence  on  his  part. 
The  rule  more  correctly  stated  is  that  an  innkeeper  is  bound 
to  exercise  extraordinary  care;  that  his  liability  is  approxi- 
mately that  of  an  insurer  when  the  property  of  the  guest  is 

Southern  Express  Co.  v.  Womack,  1    Monongahela  Ins.  Co.  v.  Chester,  43 
Heisk.   269;  State  v.  Moore,  74  Mo.     Pa,  St.  493. 
418;  League  v.  Rogan,  59  Tex.  434; 

327 


§§355-6.]      INNKEEPERS BOAEDING-HOrSE    KEEPERS.       [PAET    III. 

brought  within  the  inn  and  expressly  or  by  implication  confided 
to  his  care.^ 
§  355.  Forcible  robbery^  riots,  etc. —  Diligence. —  If  the 

robbery  or  riot  that  causes  the  loss  is  irresistible  and  without 
fault  or  negligence  on  the  part  of  the  innkeeper  or  those  in 
charge  of  the  inn,  it  can  be  clearly  said  that  he  would  be  ex- 
cused from  liability.  While  this  is  undoubtedly  true,  it  must  be 
remembered,  however,  that  before  he  can  be  excused  he  must 
show  that  he  could  not  have  avoided  the  loss  if  he  had  exer- 
cised a  high  degree  of  diligence ;  for  if  by  such  diligence  he,  or 
those  under  his  control,  could  have  avoided  the  loss,  he  would 
be  liable.  If,  for  example,  the  force  was  great  and  irresistible, 
and  of  such  a  nature  that  it  could  not  have  been  repelled  and 
the  loss  could  not  have  been  prevented,  yet  if  it  should  appear 
that  the  innkeeper  failed  to  lock  the  safe  that  contained  the 
property  placed  in  his  hands  by  the  guest  for  safe-keeping,  or 
failed  to  guard  the  inn  as  usual  and  as  high  diligence  on  his 
part  demanded,  or  failed  to  call  to  his  assistance  any  aid  that 
he  might  have  called  in  to  protect  the  property,  he  could  not 
shield  himself  by  simply  saying  that  it  would  have  made  no 
difference  —  that  the  robbery  would  have  occurred  at  all  events ; 
that  the  force  was  such  that  he  could  not  have  resisted  it.  He 
must,  in  order  to  be  excused,  show  that  he  exercised  extraor- 
dinary diligence;  that  he  did  everything  possible  to  resist  the 
force  and  avert  the  loss.  But  suppose  he  knew  that  his  house 
was  to  be  raided  by  robbers  or  rioters  at  a  certain  time,  and 
by  acting  promptly  he  could  have  given  notice  to  the  police, 
and  by  so  doing  have  thwarted  the  plans,  or  at  least  have  im- 
peded the  progress,  of  the  robbers  or  rioters.  It  would  cer- 
tainly be  his  duty  to  give  such  notice,  and  he  would  not  be 
excused  if  he  failed  to  do  so,  and  to  do  whatever  else  he  could 
do  to  avoid  the  accomplishment  of  the  crime.  He  woukl  be 
held  to  the  very  highest  diligence  in  this  respect,  and  to  ex- 
cuse himself  from  loss  he  would  be  obliged  to  show  that  he 
had  exercised  such  diligence.^ 

§  356.  If  the  loss  is  occasioned  by  force  from  within.— If 
the  loss  occurred  by  reason  of  force  from  within  the  inn, 
whether  from  the  servants  or  guests,  a  very  different  question 

1  Wessenger  v.  Taylor,  1  Bush  (Ky.),  2  Hulbert  v.  Hartman,  79  III  App. 
275.  289. 

328 


CH.  III.]  LIABILITY.  [§  356. 

is  presented.  The  innkeeper,  it  is  said,  "guarantees  the  good 
conduct  of  all  persons  whom  he  admits  under  his  roof,"  whether 
they  are  servants  or  guests.  He  is  not  only  under  no  obligation 
to  receive  persons  as  guests  who  will  steal  from  or  rob  the 
guests  of  the  house,  but  the  law  forbids  that  they  shall  be  ad- 
mitted by  him  either  as  guests  or  otherwise.  The  guests  of  the 
inn  have  the  legal  right  to  rel}^  upon  the  innkeeper  to  protect 
them  not  only  from  the  servants  of  the  inn,  over  whom  he  has 
control,  but  also  from  the  guests  whom  the  innkeeper  admits 
to  the  inn.^  At  first  blush  it  would  seem  to  be  a  hardship  to 
hold  the  innkeeper  to  loss  occurring  by  reason  of  larceny  or 
robbery  committed  by  guests  who  have  been  admitted  within 
the  inn,  and  who  perhaps  are  unknown  to  the  innkeeper,  but 
public  policy  seems  to  demand  that  he  shall  insure  his  guests 
from  loss  by  reason  of  the  acts  of  his  servants  or  the  acts  of 
his  guests.  It  is  the  duty  of  the  innkeeper  to  provide  honest 
servants  and  keep  honest  inmates,  and  to  exercise  care  and 
vigilance  over  all  persons  who  may  come  into  his  house,  whether 
as  guests  or  otherwise.  By  the  common  law  he  is  responsible 
not  only  for  the  acts  of  his  servants  and  domestics,  but  also 
for  the  acts  of  his  guests.  The  reason  for  this  stringent  rule 
has  been  well  stated  by  Sir  "William  Jones.  He  says:  ^  "  Kigor- 
ous  as  this  rule  may  seem,  and  hard  as  it  may  actually  be  in 
one  or  two  particular  instances,  it  is  founded  on  the  great  prin- 
ciple of  public  utility  to  which  the  private  consideration  ought 
to  yield.  For  travelers,  who  must  be  numerous  in  a  rich  and 
commercial  country,  are  obliged  to  rely  almost  implicitly  upon 
the  good  faith  of  innkeepers  whose  education  and  morals  are 
none  of  the  best,  and  who  might  have  frequent  opportunities 

1 A  hotel   keeper   is  not  relieved  cess  to  the  room.     Jacobs  v.  Haynes, 

from  liability  for  loss  of  a  guest's  35  N.  Y.  S.  120. 

property,  including  samples  of  goods  2  Jones  on  Bailments.  95-96;  Jalie 
taken  from  his  room  by  a  fellow-  v.  Cardinal  et  al.,  35  Wis.  118-126. 
guest,  admitted  thereto  by  tlie  cham-  In  Cunningham  v.  Buckey,  42  W.  Va. 
bermaid,  merely  because  she  had  sev-  671,  35  L.  R.  A.  850,  the  court  flis- 
eral  times  seen  the  two  guests  to-  cusses  the  common-law  liability  in 
gether  in  the  room,  or  because,  as  the  this  respect.  Citing  authorities,  the 
proprietor  afterwards  learned,  the  court  say:  "  By  the  common  law  of 
guest  hadauthorized  his  fellow-guest  England  an  innkeeper  is  resi)onsible 
to  sell  goods  from  the  samples,  as  it  for  the  loss  of  tlie  goods  or  money  of 
does  not  follow  therefrom  that  he  a  traveler  who  is  his  guest,  when- 
had  given  him  authority  to  have  ac-  ever  the  loss  is  not  occasioned  by 

329 


§356.]  INNKEEPERS  —  BOARDING-HOUSE    KEEPERS.       [PART    III. 


of  associating  with  ruffians  and  pilferers,  where  the  injured 
guest  would  seldom  or  ever  obtain  legal  proof  of  such  com- 
bination, or  of  their  negligence  if  any  actual  fault  had  been 
committed  by  them." 

the  default  of  the  traveler  himself,  guests  or  otherwise.  By  the  com- 
mon law  he  is  responsible  not  only 
for  the  acts  of  his  servants  and  do- 
mestics, but  also  for  the  acts  of  other 
guests.'  Jalie  v.  Cardinal,  35  Wis. 
118.  'Neither  the  length  of  time 
that  a  man  remains  at  an  inn,  nor 
any  agreement  that  he  may  make  as 
to  the  price  of  board  per  day  or  per 
week,  deprives  him  of  his  character 
as  traveler  and  guest,  provided  he 
retains  his  status  as  a  traveler  in  other 
respects.'  Id.  There  is  no  question 
that  the  plaintiff  was  a  guest  at  the 
defendant's  hotel,  and  that  while 
there  he  was  robbed  in  his  room 
while  asleep,  from  within  the  defend- 
ant's family,  including  his  servants. 
That  he  had  been  drinking,  was  care- 
less with  his  money,  and  trusted  in 
the  honesty  of  defendant's  house- 
hold, and  refused  the  services  of 
IMrs.  Buckey  as  to  the  care  of  his 
money,  will  not  excuse  the  defend- 
ant from  the  dishonesty  of  those  ad- 
mitted to  his  employment.  It  was 
his  duty  to  surround  himself  with 
honest  servants  for  the  protection  of 
the  public;  and  he  cannot  excuse 
himself  from  liability  by  showing 
that  the  servant  was  a  stranger  and 
hired  on  recommendation  as  to  good 
character.  He  should  have  exer- 
cised care  and  vigilance  over  wander- 
ing servants  admitted  to  his  house, 
and  see  that  they  did  not  have  the 
opportunity  to  steal  from  his  guests." 
Gile  V.  Libby,  36  Barb.  (N.  Y.)  70; 
Houser  v.  Tully,  62  Pa,  St.  92;  Walsh 
V.  Porterfield.  87  Pa.  St.  376;  Fuller 
V.  Coats,  18  Ohio,  343;  Smith  v.  Wil- 
son, 36  Minn.  334;  Spring  v.  Hagar, 
14.5  Mass.  186;  Rockwell  v.  Proctor, 
39  Ga.  105. 


the  act  of  God  or  the  queen's  ene- 
mies. Saund.  Neg.  212.  'An  inn- 
keeper, like  a  common  carrier,  is  an 
insurer  of  the  goods  of  his  guests, 
and  he  can  only  limit  his  liability 
by  express  agreement  or  notice.'  2 
Kent,  Com.  594.  '  The  common  law, 
as  is  well  known,  upon  grounds  of 
public  policy,  for  the  protection  of 
travelers,  imposes  an  extraordinary 
liability  upon  an  innkeeper  for  the 
goods  of  his  guest,  though  they  have 
been  lost  without  his  fault.'  11  Am.  & 
Eng.Enc.Law,  p.  51.  '  If  an  innkeeper 
fails  to  provide  honest  servants  and 
honest  inmates,  according  to  the 
confidence  reposed  in  him  by  the 
public,  his  negligence  in  that  respect 
is  highly  culpable,  and  he  ought  to 
answer  civilly  for  their  acts,  even  if 
they  should  rob  the  guests  who 
eleep  in  his  chambers.'  Jones,  Bail- 
ments, 94-96.  'Generally,  and  per- 
haps universally,  he  has  been  held  to 
an  absolute  responsibility  for  all 
thefts  from  within  or  unexplained, 
whether  committed  by  guests,  serv- 
ants or  strangers.'  'The  general 
principle  seems  to  be  that  the  inn- 
keeper guarantees  the  good  conduct 
of  all  persons  whom  he  admits  under 
his  roof,  provided  his  guests  are 
themselves  guilty  of  no  negligence 
to  forfeit  the  guaranty.'  Cutler  v. 
Bonney,  30  Mich.  259,  18  Am.  Rep. 
127.  '  Proof  of  the  loss  by  the  guest 
while  at  the  inn  is  presvimptive  evi- 
dence of  negligence  on  the  part  of 
the  innkeeper  or  of  his  domestics. 
It  is  the  duty  of  the  innkeeper  to 
provide  honest  servants,  and  keep 
honest  inmates,  and  to  exercise  care 
and  vigilance  over  all  persons  who 
may  come  into  his  house,  whether  as 


330 


CH.  III.]  LIABILITY.  [§§  357,  358, 

§  357,  (4)  By  reason  of  the  inherent  nature  of  the  prop- 
erty.— Where  the  loss  occurs  without  the  fault  of  the  innkeeper 
and  because  of  the  inherentnature  of  the  property, the  innkeeper 
cannot  be  chargeable  with  its  loss.  As,  where  fruit  perishes, 
or  where  animals  die  because  of  disease,  or  are  injured  on  ac- 
count of  their  vicious  nature.^  But  should  the  animal  not  die 
or  be  lost  from  its  own  inherent  nature,  from  disease  or  its 
vicious  action,  the  innkeeper  would  be  liable  unless  he  could 
show  that  he  was  without  fault  or  that  it  resulted  from  such 
cause  as  would  excuse  him.''  In  Howe  Machine  Co.  v.  Pease^ 
the  court  say:  "  Loss  of  goods  or  chattels  put  in  charge  of  an 
innkeeper  by  a  guest  gives  rise  to  a  presumption  of  the  inn- 
keeper's negligence;  but  that  presumption  may  be  repelled,  not- 
only  by  proof  that  the  loss  occurred  through  inevitable  cas- 
ualty or  superior  force,  but  by  proof  that  he  was  not  negligent,^ 
or  proof  that  the  goods  or  chattels  were  of  a  certain  perishable 
or  changeable  kind,  which  would  give  rise  to  a  presumption  that 
their  loss  occurred  in  due  course  and  order  of  things." 

§  358.  (5)  Through  the  fault  of  the  guest,  his  servants 
or  companions. —  This  limitation  of  the  innkeeper's  liability 
is  upon  the  theory  that  the  guest  is  guilty  of  contributory  neg- 
ligence, or  it  might  be  because  of  the  tortious  conduct  of  the 
guest  or  the  fault  of  his  servants  or  companions.  Just  what 
such  negligence  is,  that  will  excuse  the  innkeeper  from  liability, 
has  been  the  subject  of  a  great  deal  of  discussion.  In  Mich- 
igan it  has  been  held  that  the  innkeeper's  liability  for  the  bag- 
gage of  the  guest  is  not  diminished  but  rather  increased  by  the 
fact  that  the  guest  had  become  so  intoxicated  at  his  bar  as  to- 
be  unable  to  take  care  of  it  himself.* 

It  has  been  frequently  held  that  the  mere  fact  of  failure  to- 
lock  or  fasten  the  door  of  the  room  at  night,  as  matter  of  law, 
is  not  such  negligence  on  the  part  of  the  guest  as  will  relieve 

1  Howe  Machine  Co.  v.  Pease,  49     keeper.     Sibley  v.  Aldricli,  33  N.  H. 
Vt.    477;    Metcalf    v.    Hess,    14    111.     553. 
129.  3  49  Vt.  477. 

2Hill  V.  Owen,  5  Blackf.  (Ind.)32.3.  ^Kubenstein  v.  Cruikslianks,  54 
And  an  innkeeper  was  held  liable  Mich.  199.  "  The  fact  that  the  guest 
for  damage  to  a  guest's  horse  by  the  is  intoxicated  or  his  door  unlocked 
horse  of  another  guest,  although  the  will  not  destroy  the  liability  of  an 
injury  was  occasioned  without  any  innkeeper  for  theft  committed  by- 
negligence  on  the  part  of  the  inn-     his      servants."      Cunningham      v. 

Buckey,  47  W.  Va.  67. 
331 


^  358.]  INNKEEPERS BOARDING-HOUSE   KEEPERS.       [PART    III, 

the  innkeeper  from  loss,  but  that  this  fact  may  be  taken  in 
connection  with  others  as  evidence  of  negligence  for  the  jury 
to  consider.  The  tendency,  however,  of  the  more  modern 
cases  is  that  failure  to  lock  or  bolt  the  door  of  a  room  at  an 
inn,  when  there  is  a  lock  or  bolt  upon  it,  may  of  itself  be  given 
to  the  jury  as  negligence.^  In  Swann  v.  Smith ^  it  was  held: 
AVhere  an  inmate  of  a  lodging-house  leaves  the  door  of  his 
room  unlocked,  knowing  that  persons  ma}^  enter  the  house  and 
go  to  his  room  unnoticed,  he  cannot  recover  of  the  keeper  of 
the  house  for  property  stolen  from  his  room,  being  himself 
lacking  in  ordinary  care.  The  question  of  negligence  as  ap- 
plied to  the  guest  of  the  hotel,  as  in  every  other  case  where  negli- 
gence is  depended  upon  as  a  defense,  must  depend  entirely  upon 
the  circumstances  and  facts  surrounding  the  particular  occasion ; 
as,  for  example,  the  place  where  it  is  said  to  have  occurred  would 
have  a  great  deal  to  do  in  the  matter  of  deciding  whether 
what  was  done  was  negligence.  In  one  place  it  might  not  be 
considered  negligence  not  to  lock  the  door  of  a  lodging  room, 
while  in  another,  from  the  very  surroundings  of  the  place,  it 
might  be  considered  gross  neg-lio'ence.  In  Smith  v.  ]Vi/so/i^  it 
was  held  that  "  a  guest  of  an  inn  who  had  on  a  belt  containing 
$500  while  asleep  in  his  room,  the  door  of  which  could  be 
opened  by  pulling  a  wire  attached  to  the  bolt  from  the  outside, 
was  not  guilty  of  contributory  negligencu  the  money  having 

1  Spring  V.  Hagar,  145  Mass.  186;  McDaniels  v.  Eobinson,  26  Vt.  316; 
Spice  V.  Bacon,  36  L.  T.  (N.  S.)  196;  11  Am.  &  Eng.  Ency.  53.  "Despite 
Herbert  v.  Markwell,  45  L.  T.  (N.  S.)  the  divergency  of  the  decisions  in  re- 
649.  In  the  case  of  Morgan  v.  Rarey,  gard  to  the  scope  of  the  liability  of 
6  Hurl.  &  N.  265,  266,  it  is  said  that  the  innkeeper,  it  has  generally  been 
"witnesses  were,  however,  called  on  held  that  he  is  absolutely  liable  for 
tlie  part  of  the  defendants  to  prove  all  thefts  from  witliin,  or  unex- 
that  the  plaintiff  had  told  them  he  plained  losses  of  property  in  his 
had  not  locked  the  door.  It  was  ad-  charge,  but  that  he  may  be  dis- 
mitted  that  he  did  not  use  the  bolt,  charged  from  liability  bj'  any  con- 
There  was  a  notice  posted  up  over  tributory  negligence  of  the  guest,  his 
the  mantelpiece  requesting  all  visit-  servants  or  companions,  and  in  many 
ors  to  use  the  night  bolt.  The  plaint-  cases  he  has  been  discharged  when 
iff  admitted  he  saw  it,  but  said  he  the  guest  exercised  no  special  con- 
did  not  read  beyond  the  word 'no-  trol  over  his  property." 
tice.'  Chief  Baron  Pollock,  at  7iisi  ^U  Daly,  114;  Smith  v.  Wilson,  36 
prms,  left  the  question  of  negligence  Minn.  334;  Fuller  v.  Coats,  18  Ohio 
to  the  jury,  but  told  them  at  the  St.  343. 
same  time  that  the  guest  was  not  ^  36  Minn.  334. 
bound    to  lock  his  bedroom  door." 

333 


CH.  III.]  LIABILITY.  [§§  359,  360. 

been  stolen."  And  in  Becker  v.  Warner'^  it  was  held  "a  ques- 
tion for  the  jury  to  determine  whether  it  was  contributory  neg- 
ligence where  the  guest,  who  was  intoxicated,  left  the  window 
of  his  room  on  the  ground  floor  open  and  the  lights  burning  in 
the  room  and  went  to  bed." 

§359.  Reasonable  regulations  of  the  inn. —  There  is  no 
doubt  that  the  innkeeper  may  limit  his  liability  by  requiring 
his  guests  to  conform  to  certain  reasonable  regulations.  These 
regulations  must  in  this  case,  as  in  every  case  where  they  are 
used  for  the  limiting  of  liability,  be  reasonable.  This  is  gen- 
erally done  by  posting  them  in  the  several  rooms  of  the  inn; 
but  the  mere  fact  of  posting  them  in  the  rooms  is  not  sufficient: 
it  is  necessary  that  they  should  come  to  the  actual  notice  of 
the  guest.  Where  reasonable  regulations  have  been  made,  and 
the  guest  has  had  actual  notice  of  them,  he  will  be  bound  by 
them  if  it  appears  that  by  reason  of  his  failure  to  comply  with 
the  regulations  the  loss  occurred.  For  in  such  case  it  could  be 
reasonably  concluded  that  the  loss  Avas  occasioned  by  the  neg- 
ligence of  the  guest.'^  The  guest  is  also  liable  for  the  negli- 
gence of  his  servants  which  results  in  loss  or  injury  to  the 
property,  as  well  as  the  negligence  of  his  companions,  or  per- 
sons whom  he  harbors,  or  persons  over  whom  he  has  control 
while  a  guest  at  the  inn.^ 

§  360.  For  what  property  liable. —  As  a  general  rule  an  inn- 
keeper is  liable  for  all  the  goods,  chattels  and  money  of  the 

1  35  N.  Y.  S.  739.'  to  make  use  of  sufficient  fastenings 

2  Fuller  V.  Coats,  18  Ohio  St.  343;  provided  for  the  safety  of  the  room 
Cashill  V.  Wright,  6  El.  &  Bl.  891;  from  which  they  were  stolen,  are 
Purvis  V.  Coleman,  21  N.  Y.  111.  "A  evidence  of  contributory  negligence." 
notice  posted  in  the  room  of  an  hotel  Shultz  v.  Wall,  134  Pa.  St.  262;  John- 
directing  guests  to  leave  their  valu-  son  v.  Richardson,  17  III.  302;  Kisten 
ables  in  the  hotel  vaults  does  not  v.  Hiidebrandt,  9  B.  Mon.  (Ky.)  74. 
apply  to  mineral  specimens  in  a  In  Burbank  v.  Chapin,  140  Mass.  123, 
guest's  trunk."  Brown  Hotel  Co.  v.  it  was  held  "that  an  innkeeper,  in 
Burckhardt  (Col),  56  Pac.  188.  the  absence  of  an  express  contract 

3  Calye's  Case,  8  Coke,  32;  Walsh  v.  to  the  contrary,  is  liable  for  the  loss 
Porterfield,  87  Pa.  St.  376.  "The  con-  by  theft  of  the  property  of  his  guest, 
duct  of  the  gviest  contributing  to  his  although  the  guest  knowingly  fails 
loss,  whether  voluntary  or  negligent,  to  comply  with  the  reasonable  regu- 
is  always  a  defense;  and  his  failure  lations  of  the  inn,  if  the  loss  is  not 
to  deposit  valuables  in  a  safe  place  attributable  to  the  non-compliance 
provided  by  the  landlord,  after  ex-  with  such  regulations." 

press  notice  so  to  do,  and  his  neglect 

333 


§  360.]  INNKEEPERS BOARDING-HOUSE   KEEPERS.       [pART   III. 


guest  that  is  brought  within  the  iuu;  and  the  limitation  that 
commonh'  applies  to  common  carriers,  which  limits  the  prop- 
erty to  that  which  is  carried  for  the  convenience  of  the  pas- 
senger, does  not  apply  in  the  case  of  an  innkeeper,^  but  includes 
whatever  property  the  guest  may  take  within  the  inn  while  he 
is  a  guest.  It  has  been  held  to  incl  ude  a  peddler's  stock  of  goods, 
and  other  property  of  an  entirely  different  nature  from  that 
which  a  guest  would  carry  for  his  convenience  while  traveling, 
as  will  be  noticed  in  cases  cited  in  the  note.  There  has  been 
no  distinction  made  by  the  courts  between  money  and  goods 
of  a  guest  in  cases  touching  the  hability  of  the  innkeeper,  and 
the  responsibility  of  the  innkeeper  in  respect  to  the  money  of 
his  guest  is  not  limited  to  such  an  amount  as  is  necessary  for 
the  guest's  traveling  expenses.^  The  only  exception,  if  indeed 
it  is  an  exception,  is  where  the  guest  obtains  a  room  to  be  used 


iBerkshire  Woolen  Mills  v.  Proctor, 
7  Cush.  417;  Wilkins  v.  Earle,  44  N.  Y. 
172.  Some  of  the  states,  however, 
have  held  to  the  rule  that  the  per- 
sonal property  for  which  the  inn- 
keeper is  liable  consists  of  such 
articles  of  necessity  or  personal  con- 
venience as  are  usually  carried  by 
passengers  for  their  personal  use. 
Lassen  &  Whitaker  v.  Clark,  37  Ga. 
242.  Maryland  follows  the  same  rule; 
and  in  Pettigrew  v.  Barnham,  11  Md. 
434.  it  was  held:  "The  innkeeper  is 
liable  without  regard  to  actual  fault 
or  neglect  on  his  part,  but  such  lia- 
bility is  limited  to  what  is  considered 
baggage  and  does  not  extend  to  every 
article  the  guest  may  choose  to  carry 
with  him;  the  term  '  baggage '  does 
not  embrace  merchandise  or  other 
valuables  not  designed  for  use  or  per- 
sonal convenience  on  the  journey. 
Held,  further,  that  the  innkeeper  is 
not  liable  for  silver  knives,  forks  and 
spoons  carried  by  the  guest  in  his 
trunk,  but  is  liable  for  personal  orna- 
ments or  jewelry  appropriate  for  a 
traveler's  wardrobe."  In  Tierber  v. 
Burrows,  27  Md.  130,  it  was  held: 
"  Innkeepers,  in  relation  to  the  bag- 
gage of  their  guests,  stand  on  the 


same  footing  as  carriers  of  passen- 
gers." The  great  weight  of  author- 
ity, however,  is  as  laid  down  in  the 
text, — the  liability  held  to  extend  to 
personalty  of  all  kinds.  Clute  v. 
Wiggins,  14  John.s.  (N.  Y.)  175:  Hu- 
lett  V.  Smith,  33  N.  Y.  571;  Houser  v. 
Tully,  62  Pa.  St.  92;  Metcalf  v.  Hess, 
14  111.  129:  Hilton  v.  Adams,  71  Me. 
19;  Cohen  v.  Manuel,  91  Me.  274; 
Smith  V.  Wilson,  36  Minn.  334;  Piper 
V.  Manny,  21  Wend.  (N.  Y.)  282,  where 
plaintiff  recovered  for  a  tub  of  butter. 
And  in  Sneider  v.  Geiss,  1  Yeates 
(Pa.),  34,  the  recovery  was  for  two 
hundred  and  thirty-one  Spanish 
milled  dollars.  In  Hulett  v.  Smith, 
33  N.  Y.  571,  the  recovery  was  for 
the  plaintiff's  horse  and  wagon  and 
a  load  of  buckskin  goods;  and  in 
Clute  V.  Wiggins,  14  Johns.  (N.  Y.) 
175,  recovery  was  for  certain  bags  of 
wheat  and  barley.  In  Cohen  v.  Man- 
uel, 91  Me.  274,  a  peddler's  stock  of 
goods  was  held  to  be  within  the  rule 
of  liabilty;  and  this  was  also  held  in 
Rubenstein  v.  Cruikshanks,  54  Mich. 
199. 

2  Smith  V.  Wilson,  36  Mich.  334. 
See  also  cases  cited  iu  preceding 
note. 


834 


CH.  III.]  LIABILITY.  [§§  361,  362. 

distinctively  for  business  purposes,  as  for  displaying  goods  for 
sale  or  show;  but  even  in  such  case  the  liability  of  an  ordinary 
bailee  attaches.^ 

§  361.  Must  be  a  guest  of  the  inn  and  the  property  within 
the  inn. — Before  the  liability  of  the  innkeeper  attaches,  how- 
ever, it  must  clearly  appear  that  the  owner  of  the  property 
which  is  injured  or  lost,  and  for  which  recovery  is  sought,  is  a 
guest  of  the  inn  at  the  time  of  the  loss,  and  that  the  property 
was  infra  hospitiiim.  The  facts  necessary  to  be  shown  to  prove 
that  the  person  was  a  guest  of  the  inn  have  already  been  dis- 
cussed. 

§  362. Infra  hospitium . —  When  the  goods  of  the  guest 

may  be  said  to  be  within  the  inn  is  a  question  of  very  great 
importance  in  this  connection.  Just  when  can  it  be  said  that 
the  innkeeper  has  the  goods  in  his  possession  as  an  innkeeper? 
In  other  words.  Just  when  can  it  be  said  that  his  liability  com- 
mences? "When  are  the  goods  infra  hospitium-  f  It  seems  that 
it  is  not  necessary  that  the  guest  shall  himself  bring  his  goods 
within  the  inn  and  deposit  them  with  the  innkeeper  at  the 
time  of  his  arrival,  or  that  he  shall  even  have  them  in  his  pos- 
session at  the  time  of  his  arrival  at  the  inn ;  but  that  the  inn- 
keeper is  liable  whenever  the  property  is  placed  either  in  his 
possession  as  an  innkeeper,  or  whenever  it  is  put  in  the  custody 
or  control  of  his  servants,  either  within  the  inn  or  without  and 
about  the  inn,  if  the  property  is  taken  possession  of  by  them 
while  acting  as  the  servants  of  the  innkeeper  and  in  compliance 
with  his  directions;  or  when  the  traveler  arrives  at  the  inn  and 
places  his  baggage  and  property  in  the  hands  of  the  porter, 
whose  business  it  is  to  take  charge  of  the  baggage  of  guests, —  in 
such  cases  it  is  held  to  be  within  the  inn  and  subjects  the  inn- 
keeper to  liability.  The  placing  of  the  property  in  the  hands 
of  the  servants  and  the  agents  of  the  innkeeper,  who  are  au- 
thorized and  expected  to  wait  upon  the  guests  and  to  care  for 
their  property,  is  placing  it  in  the  custody  of  the  innkeeper 
himself.  As,  for  example,  where  animals  and  vehicles,  loads 
of  grain,  goods  of  peddlers,  or  other  like  property  has  been 
placed  in  the  hands  of  the  hostler  at  stables  belonging  to  the 
inn,  it  has  been  frequently  held  that  the  property  is  infra  hos- 
pitium, and  if  loss  occurs  for  which  the  innkeeper  cannot  be 

iSeeiJO.<§  367. 
335 


§  362.] 


INNKEEPERS BOAKDIXG-HOUSE    KEEPERS.       [PAKT    III. 


leo-allv  excused,  he  is  liable.^  And  it  has  been  held  that  where 
an  hotel  keeper  sends  his  porter  to  the  depot  to  solicit  persons 
traveling  to  stop  at  the  inn,  and  there  takes  charge  of  the  bag- 
gage, the  traveler  becoming  a  guest  of  the  hotel,  the  liabil- 
ity of  the  innkeeper  for  the  baggage  of  the  traveler  begins 
on  the  delivery  of  the  baggage  to  the  porter.^  And  in  Williams 
V.  Moore"-  it  was  held  that  an  hotel  keeper  to  whom  a  guest 
delivers  his  baggage  for  the  purpose  of  having  his  baggage 
brought  to  the  hotel  is  responsible  for  the  loss  of  such  bag- 
gage through  the  negligence  of  an  expressman  to  whom  the 
checks  are  given  for  such  purpose,  although  the  baggage  is 
never  brought  to  the  hotel.  The  retaining  of  money  or  valu- 
ables on  his  own  person  while  a  guest  at  the  inn  is  not  neces- 
sarily such  an  exclusive  possession  as  would  excuse  the  inn- 
keeper from  liability.^  Nor  will  the  liability  of  the  innkeeper 
cease  if  the  guest  directs  his  goods  to  be  kept  in  a  certain  part 
of  the  inn,  or  should  order  them  taken  to  his  room.*    But  if 


1  Mason  v.  Thompson,  9  Pick. 
(Mass.)  280:  Albian  v.  Presby,  8  N.  H. 
408.  This  case,  though  an  early  one, 
collects  many  of  the  authorities  on 
this  subject.  The  court  say:  "The 
general  principle  that  an  innkeeper 
is  bound  to  keep  safely  the  goods  of 
his  guest  which  are  in  his  custody 
infra  hospitium,  but  that  he  shall  an- 
swer for  nothing  without  the  inn,  is 
well  settled.  There  are  exceptions 
where  the  loss  is  occasioned  by  the 
servants  or  companions  of  the  guest, 
not  necessary  to  be  further  noticed 
at  this  time."  In  Clute  v.  Wiggins, 
14  Johns.  175,  it  was  held,  where  a 
sleigh-load  of  grain  was  put  by  the 
guest  into  an  outhouse  appurtenant  to 
the  inn.  where  loads  of  that  descrip- 
tion were  usually  received,  and  the 
grain  was  stolen  during  the  night, 
that  the  innkeeper  was  liable  for  tlie 
loss.  Judge  Story,  referring  to  this 
case,  says:  "Where  goods  are  deliv- 
ered at  the  usual  place  for  such 
goods,  the  innkeeper  is  chargeable 
with  them,  although  not  strictly 
within  the  inn."     Story,  Bailm.  314. 


1  In  Coskery  v.  Nagle.  83  Ga.  696, 
it  was  held :  "  When  a  traveler  arrives 
at  a  depot  and  is  met  by  one  who  is 
a  porter  of  an  inn,  hotel,  or  house 
kept  for  the  accommodation  of  tran- 
sient guests,  wayfarers  and  travelers, 
who  indicates  to  the  traveler  a  cer- 
tain conveyance  by  which  he  can  go 
to  such  place  or  not,  and  the  traveler 
delivers  to  him  his  baggage  or  the 
check  therefor.the  traveler  is  thereby 
a  guest  of  such  inn.  hotel  or  house, 
so  far  as  to  render  tlie  proprietor 
thereof  liable  for  the  safe-keeping 
or  redelivery  of  the  same;  the  lia- 
bility of  the  proprietor  commences 
from  the  time  of  the  delivery  of  the 
baggage  or  check  to  the  porter;  all 
that  the  traveler  must  do  is  to  assure 
himself  that  the  person  representing 
himself  as  such  porter  is  in  fact  the 
porter  of  the  house."'  Dickinson  v. 
Winchester,  4  Cush.  (Mass.)  114. 

2  G9  111.  App.  618. 

3Jalie  v.    Cardinal,   35  Wis.   118  ^ 
Smith  V.  Wilson,  36  Minn.  334 
•t  Fuller  V.  Coats,  13  Ohio  St.  43a 


336 


CH.  III.]  LIABILITY.  [§  363. 

the  guest  should  give  such  directions  as  to  the  care  of  the  goods 
or  property  as  would  remove  it  from  the  custody  or  control  of 
the  innkeeper,  as,  for  example,  placing  it  in  the  hands  of  some 
other  person  for  safe-keeping,  in  such  case  the  innkeeper  would 
be  relieved  of  liability.^ 

§  363.  Lost  by  theft. —  Where  the  loss  occurs  by  theft 

committed  by  the  servants  of  the  innkeeper,  or  by  other  guests, 
and  without  the  fault  of  the  guest  sustaining  the  loss,  his  serv- 
ants or  companions,  the  innkeeper  is  liable.  The  rule  is  ad- 
mirably stated  in  the  case  of  Houser  v.  Telia?  The  court  say : 
"  The  liability  of  an  innkeeper  arises  from  the  nature  of  his 
employment.  He  holds  out  a  general  invitation  to  travelers 
to  come  to  his  house  and  he  receives  a  reward  for  his  hospitality. 
The  law  in  return  imposes  on  him  corresponding  duties,  one 
of  which  is  to  protect  the  property  of  those  whom  he  receives 
as  guests.  He  is  bound  to  take  all  possible  care  of  the  goods 
and  baggage  of  his  guest  deposited  in  his  house,  or  intrusted 
to  the  care  of  his  family  or  servants,  and  he  is  responsible  for 
their  acts  as  well  as  the  acts  of  other  guests.  If  the  goods  of 
the  guest  are  damaged  in  the  inn  or  are  stolen  from  it  by  the 
servants  or  domestics,  or  by  a  stranger  guest,  he  is  bound  to 
raake  restitution,  for  it  is  his  duty  to  provide  honest  servants 
and  to  exercise  an  exact  vigilance  over  the  persons  coming  into 
his  house  as  guests  or  otherwise.  His  responsibilit}^  extends  to 
all  his  servants  and  domestics,  and  to  all  the  goods  and  money 
of  his  guest  which  is  placed  within  the  inn,  and  he  is  bound  in 
every  event  to  pay  for  them  if  stolen,  unless  they  are  stolen 
by  a  servant  or  companion  of  the  guest.  In  case  of  a  loss  by 
theft  it  is  no  excuse  for  the  innkeeper  that  he  was  sick  or  ab- 
sent from  home  at  the  time,  for  he  is  bound  in  such  case  to 
provide  honest  and  faithful  servants  according  to  the  confidence 
reposed  in  him  by  the  public.  .  .  .  But  though  an  inn- 
keeper is  liable  on  the  grounds  of  soundest  policy  and  public 
convenience  for  whatever  is  deposited  in  his  house  by  a  guest, 

1  In  Houser  v.  Telia,  92  Pa.  St.  92,  inmate  in  whom  he  reposes  his  con- 
it  was  held  '-an  innkeeper  is  not  lia-  fidence."  Sneider  v.  Geiss,  1  Yeates 
ble  for  the  loss  or  embezzlement  of  (Pa.),  24. 

his  guest's  money  when  he  does  not        '^  G2  Pa.  St.  92-95 ;  Walsh  v.  Porter- 
deposit  it  on  the  security  of  the  inn  field,  87  Pa.  St.  376;  Clute  v.  Wiggins, 
but  intrusts  it  to  another  guest  or  14  Johns.  175. 
22                                              337 


§§  30i-5.]       INNKEEPERS BOAEDING-HOUSE    KEEPERS.       [PART    III. 

he  is  not  responsible  for  the  loss  or  embezzlement  of  his  guest's 
money,  where  he  does  not  deposit  it  on  the  security  of  the  inn, 
but  intrusts  it  to  another  guest  or  inmate  for  safe-keeping,  in 
whom  he  reposes  his  trust  and  confidence."  ^ 

§  361.  If  a  boarder,  not  a  guest, —  If  the  person  who  sus- 
tains the  loss  be  merely  a  boarder  and  not  a  guest  at  the  hotel, 
the  extraordinary  liability  for  loss  does  not  attach.  But  in 
such  case  the  liability  for  property  lost  by  theft,  or  by  any  of 
the  causes  already  discussed,  rests  upon  the  question  of  ordi- 
nary diligence  rather  than  upon  the  exceptional  liability,  for 
the  innkeeper  is  only  a  bailee  for  hire.^  There  are  some  cases 
that  are  not  in  harmony  with  this  doctrine;  but  this  seems  to 
be  the  general  rule. 

§  365.  Property  of  a  third  person, —  The  ownership 

of  the  property  lost  infra  hosjntium  by  the  guest  is  not  an 
essential  to  recovery.  If  the  property  of  a  principal  is  brought 
by  his  agent  or  servant  while  a  guest  within  the  inn  as  bag- 
gage, or  for  use  in  the  business  of  the  principal,  and  is  lost 
under  such  circumstances  as  would  ordinarily  render  the  inn- 
keeper liable,  in  such  case  the  usual  liability  of  an  innkeeper 
attaches  and  the  principal  would  have  an  action  against  him 
for  such  loss.  In  Towson  v.  Havre  de  Grace  Bank  *  it  was  held 
"  if  a  servant  is  robbed  of  his  master's  money  or  goods  while 
a  guest  at  an  inn,  the  master  may  maintain  an  action  against 

1  Sneider  v.  Geiss,  1  Yeates,  35.  theft  of  the  goods.     In  a  later  case  in 

2  A  very  full  discussion  of  this  ques-  England,  Hoklen  v.  Soulby,  8  Com.  B. 
tion,  as  well  as  of  the  liability  of  the  (N.  S.)  254,  264,  270.  it  was  held  "  that 
innkeeper  to  protect  the  property  of  a  lodging-house  keeper  was  not  re- 
the  guest,  may  be  found  in  the  notes  sponsible  for  the  loss  of  certain  prop- 
in  the  case  of  Taylor  v.  Downey,  104  erty  of  a  lodger  who  was  about  to 
Mich.  532,  39  L.  R.  A.  92.  In  Eng-  quit,  which  had  been  stolen  by  a 
land  it  has  been  held  that  the  board-,  stranger,  who  in  the  absence  of  such 
ing-house  keeper  is  liable  as  a  hired  lodger  was  permitted  by  the  occupier 
bailee  to  take  such  care  of  the  board-  of  the  house  to  enter  the  room  for 
er's  baggage  as  a  prudent  person  the  purpose  of  viewing  it."  The  su- 
would  take  of  his  own  property  under  preme  court  of  Tennessee  in  Man- 
like circumstances.  Dansey  v.  Rich-  ning  v.  Wells,  9  Humph.  74(3,  held 
ardson,  3  El.  &  Bl.  144, 148,  171.  But  "that  it  is  sufBcient  to  give  the 
in  this  case  the  court  was  divided  as  boarder  a  remedy  when  he  shall 
to  whether  a  boarding-house  keeper  have  proven  the  innkeeper  has  been 
is  liable  for  the  negligence  of  his  guilty  of  gross  negligence." 
servants  where  the  latter  leaves  a  3  6  Harris  &  John.  (Md.)  47, 14  Am. 
door  ajar  and  thus    facilitates  the  Dec.  254. 

338 


CH.   III.]  LIABILITY.  [§    366. 

the  innkeeper;"  and  the  opinion,  among  other  things,  says: 
"  Thus  it  is  said  in  Yelverton  '  that  if  A.  sends  his  money  by  a 
friend  who  is  robbed  in  the  inn  at  which  he  is  a  guest,  A.  shall 
have  the  action,'  and  there  is  no  reason  why  it  should  not  be 
so,  the  innkeeper  being  chargeable,  not  on  the  ground  that  he 
entertains  the  owner  of  the  money  or  other  goods,  but  because 
he  receives,  no  matter  by  whom  paid,  a  compensation  for  the 
risk." 

§  366.  Liable  to  corporation  for  loss  of  agent's  goods.  — 
And  so  it  has  been  held  that  a  corporation  may  sustain  an  ac- 
tion against  the  innkeeper  for  loss  of  its  goods  while  in  posses- 
sion of  its  agent  who  is  a  guest  at  the  inn.  In  BerTcshire  Woolen 
Co.  V.  Proctor^  this  question  was  fully  considered.  The  court 
say:  "Another  ground  of  defense  taken  in  behalf  of  the  de- 
fendants is,  that  this  action  cannot  be  maintained  because 
plaintiffs,  being  a  corporation,  were  not  and  could  not  be  in  the 
nature  of  things  the  guest  of  the  defendants;  that  an  innkeeper 
is  liable  only  for  the  goods  of  his  guest,  and  that  therefore  the 
defendants  are  not  liable  for  the  money  of  the  plaintiffs,  as 
they  were  not  actuall}^  or  constructively  the  guests  of  the 
defendant.  But  this  reasoning  cannot  prevail.  R.  was  the 
defendant's  guest,  and  he  was  the  agent  and  servant  of  the 
plaintiffs,  and  the  money  which  was  lost,  and  for  which  this 
suit  was  brought,  was  the  plaintiffs'  money  in  the  possession 
of  R.,  delivered  by  the  plaintiffs  to  him  as  their  servant  and 
agent,  to  be  expended  in  their  business.  This  action,  there- 
fore, can  well  be  maintained  upon  the  well-settled  principle  of 
law,  that,  if  a  servant  is  robbed  of  his  master's  money  or  goods, 
the  master  may  maintain  the  action  against  the  innkeeper  in 
whose  house  the  loss  was  sustained."  '^ 

A  bailee  who  is  a  guest  at  the  inn  may  recover  for  property 
lost  while  a  guest,  and  this  is  the  rule  even  if  he  is  a  gratuitous 
bailee  and  not  liable  to  the  general  owner  for  the  loss. 

In  Chamherlain  v.   West^  an  action  was  brought  by  a  guest 

1  7  Cush.  417-434,  Co.,  80  Minn.  265;  Russell  v.  Butter- 

■-'Bedle  v.   Morris,  Yelv.  1G2;  Ben-  field,  21  Wend.  (N.  Y.)  300;  Meclian- 

nett  V.  Mellor,  5  Ir.  Rep.  273;  Mason  ics'  Bank  v.  Farmers'  Bank,  60  N.  Y. 

V.  Thompson,  9  Pick.  280;   Grinnell  40.    And  to  the  point  that  tlie  bailee 

V.  Cook,  B  Hill.   485;  Coykendall   v.  may  maintain  an  action,  though  not 

Eaton,  55  Barb.  (N.  Y.)  188-190.  responsible  to  the  general  owner  for 

337  Minn.  54;  Jellett  v.  St.  Paul  R.  the  loss,  Falkner  v.  Brown,  13  Wend. 

339 


§  367.]  INXKEEPEKS BOAEDIXG-HOUSE    KEEPERS.       [PART    III. 

to  recover  the  value  of  a  diamond  scarf-pin  alleged  to  have 
been  stolen  from  his  room  while  a  guest  at  the  hotel.  It 
was  shown  that  the  plaintiff  was  not  the  owner  of  the  pin ; 
that  it  had  been  loaned  to  him  by  a  friend  about  ten  years 
previously.  The  court,  in  its  opinion,  says:  "]S'othing  is 
better  settled  than  that,  in  actions  for  tort  in  the  taking  or 
conversion  of  personal  property  against  a  stranger  to  the  title, 
a  bailee,  mortgagee  or  other  special  property  man  is  entitled 
to  recover  full  value,  and  must  account  to  the  general  owner 
for  the  surplus  recovered  beyond  the  value  of  his  own  interest; 
but  as  against  the  general  owner  or  one  in  privity  with  him, 
he  can  only  recover  the  value  of  his  special  property." 

§  367.  Exception  —  Goods  for  sale  or  show. —  The  extraor- 
dinary liability  of  an  innkeeper  applies  where  the  guest  is 
using  the  inn  for  his  accommodation  as  a  guest,  and,  as  we  have 
seen,  attaches  to  property  which  he  carries  with  him  either  for 
use  or  for  pleasure,  and  is  not  limited  in  amount  or  value;  but 
where  a  guest  obtains  a  room  to  be  used  distinctively  for  busi- 
ness purposes,  as  for  the  displaying  of  goods  for  show  or  sale, 
the  extraordinary  liability  of  the  innkeeper  does  not  attach, 
and  for  the  loss  of  such  goods  he  is  only  liable  as  an  ordinary 
bailee  for  ordinary  negligence.  In  Myers  v.  Cottrill  ^  the  court 
say:  " I  think  this  is  the  true  rule  of  law  on  the  subject.  If  a 
person  going  into  an  hotel  as  a  guest  takes  to  his  room  not 
ordinary  baggage,  not  those  articles  which  generally  accom- 
pany the  traveler,  but  valuable  merchandise  such  as  watches 
and  jewelry,  and  keeps  them  there  for  show  and  sale,  and  from 
time  to  time  invites  parties  to  his  room  to  inspect  and  to  pur- 
chase, unless  there  is  some  special  circumstance  in  the  case 
showing  that  the  innkeeper  assumes  the  responsibility  as  of 
ordinary  baggage,  as  to  such  merchandise  the  special  obliga- 

63;  Morgan  v.  Portland,  etc.  Co.,  35  other  means  for  tbe  same  purpose." 
Me.  55;  Finn  v.  Western  R.  Co.,  112  Dickinson  v.  Winchester,  4  Cush.  114, 
Mass.  524.  So  a  father  may  recover  50  Am.  Dec.  760,  761,  764.  It  was 
loss  of  property  stolen  from  his  son  ruled  that  clothing  purchased  by  a 
while  a  guest  at  an  inn.  In  Epps  v.  father  for  a  minor  son  belongs  to 
Hinds,  27  Miss.  657,  61  Am.  Dec.  528,  the  father,  and  that  he  may  recover 
529,  it  was  said:  "  WJiere  the  son  was  for  its  loss  by  an  innkeeper  or  ear- 
merely  invested  with  a  discretion  as  rier,  unless  the  son  has  been  emanci- 
to  the  expenditure  of  the  money,  pated. 
the  loss  necessarily  falls  upon  the  ^  5  Biss.  465. 
party   who   was    bound   to    furnish 

340 


CH.  III.]  LIABILITY.  [§  368. 

tions  imposed  by  the  common  law  do  not  exist,  and  the  guest, 
as  to  those  goods,  becomes  their  vendor  and  uses  his  room  for 
the  sale  of  merchandise  and  really  changes  the  ordinary 
relations  between  innkeeper  and  guest.  It  is,  we  know  as  a 
matter  of  experience,  impracticable  for  the  landlord  to  notice 
and  vouch  for  every  person  who  goes  into  the  room.  The 
guest  permits  them  to  stay  as  long  as  he  pleases  and  shows  his 
goods  and  sells  them  to  whomsoever  he  pleases.  "We  must  pre- 
sume that  it  is  not  for  that  purpose  that  the  innkeeper  allows 
persons  to  come  to  his  house  and  enter  his  rooms,  and  the  fact 
that  the  vendor  may  sleep  in  the  room  we  do  not  think 
changes  the  rule."  And  it  was  held  in  this  case  that  if  the 
plaintiff  did  use  the  room  as  a  place  for  showing  and  selling 
his  merchandise  as  such,  the  extraordinary  liability  of  the  inn- 
keeper did  not  exist.  And  in  Carter  v.  Hobhs^  the  court  say: 
"  So,  if  a  person  who  is  a  guest  have  a  room  especially  for  the 
purpose  of  showing  or  selling  his  goods,  he  cannot  hold  the  inn- 
keeper to  his  liability  strictly  as  such  in  respect  to  these  goods." 
§  368.  Liability  for  personal  injuries  to  guests, —  The 
doctrine  of  the  liability  of  the  innkeeper  proceeds  upon  the 
theory  that  he  has  control  of  his  house  and  of  the  property, 
servant^  and  guests  therein.  He  selects  his  own  servants,  and 
is  responsible  for  their  acts  while  performing  their  duties. 
To  a  certain  extent  he  has  control  over  his  guests;  he  is  not 
bound  to  receive  all  who  apply;  but  the  rules  limiting  the 
reception  of  guests  are  such  as  tend  to  exclude  people  who 
are  not  proper  and  fit  persons  to  be  harbored  and  kept  at  an 
inn,  and  who  could  not  be  trusted  to  demean  themselves  in  an 
orderly  manner.  So  that  the  innkeeper,  in  the  exercise  of  sound 
discretion  and  good  judgment,  has  the  right  to  refuse  to  receive 
such  persons  as  guests,  limiting  those  to  be  received  as  guests 
to  persons  who  are  fit,  law-abiding,  and  reputable.^    Thus  far 

1 12  Mich.  52;  Burgess  v.  Clements,  to  furnish  a  shop  to  every  guest  vvlio 

4  M.  &  S.  ;iOG;  Mowers  v.  Fethers,  61  comes  into  his  house;  and  if  a  guest 

N.  Y.  34,  19  Am.  Eep.  244,  24G;   Neal  takes  exclusive  possession  of  a  room 

V.  Wilcox,  4  Jones   L.  (N.  C.)  140,  G7  which   he   uses  as   a   warehouse  or 

Am.  Dec.  266,  267:  Fisher  v.  Kelsey,  shop,  he  discharges  the  landlord  from 

121   U.    S.    383:   Scheffer    v.    Corson  his  common-law    liability."      Farns- 

(S.  Dak.).  58  N.  W.  555.     And  in  an  worth  v.  Packwood,  1   Starkie,  249; 

early  English  case  the  same  rule  was  Becker  v.  Ilaynes.  29  Fed.  441. 
laid  down.  "A  landlord  is  not  bound         ^In  Markham  v.   Brown,  8  N.  II. 

341 


§  369.]  INNKEEPERS BOARDING-HOUSE    KEEPERS.       [PART    III. 

the  innkeeper  may  choose;  and  it  is  for  these  reasons, and  in 
the  following  out  of  the  general  theory  fixing  the  liability  of 
the  innkeeper,  that  it  may  be  said  that  the  innkeeper  is  bound 
to  protect  the  guest  within  his  inn  from  personal  injury  while  re- 
maining at  his  house  as  his  guest.  There  is,  as  matter  of  course, 
to  be  added  to  this  theordinaryrequirementsthatattach  to  every 
keeper  of  a  public  place,  to  so  protect  and  keep  the  place  that 
persons  having  aright  to  visit  it  or  use  it,  not  being  themselves 
guilty  of  negligence,  shall  be  protected  from  personal  injury. 
The  rule,  however,  fixing  the  liability  of  the  innkeeper  in 
this  regard  has  no  doubt  been  varied  more  or  less  since  the 
early  holdings  of  the  English  courts.  As,  for  example,  we  find 
in  that  early  leading  case  in  England,  Calye's  Case^  the  hold- 
ing of  the  court  is  very  much  at  variance  with  the  present  rule. 
In  that  case  the  court  say:  "If  the  guest  be  beaten  in  the  inn 
the  innkeeper  shall  not  answer  for  it;  for  the  injury  ought  to 
be  done  to  his  movables  which  he  brings  with  him;  and  by 
the  words  of  the  writ  the  inn  holder  ought  to  keep  the  goods 
and  chattels  of  his  guest  and  not  his  person." 

§  369.  Defective  or  unsound  condition  of  the  premises. — 
It  is  the  duty  of  the  innkeeper  to  exercise  ordinary  care  in 
keeping  the  premises  in  such  condition  that  the  guest  may  be 
safe  while  within  the  inn  and  using  it  in  the  ordinary  manner. 
This  is  upon  the  theory  that  the  innkeeper  extends  an  implied 
invitation  to  all  to  come  to  his  house  and  be  entertained ;  and 
he  is  therefore  liable  for  injuries  sustained  in  consequence  of 
the  bad  condition  of  the  premises.  And  so  if  a  guest  should 
be  injured  by  reason  of  a  defective  elevator;  or  by  reason  of 
want  of  ordinarily  skilful  management  of  the  same;-  or,  as 

523,  it  was  held  that  "  an  innkeeper  house.  He  is  not  bound  to  examine 
is  liable  if  his  house  is  disorderly,  and  into  the  reasonableness  of  the  guest's 
he  cannot  be  held  to  wait  until  an  requirements."'  In  Atwater  v.  Saw- 
affray  is  begun  before  he  interposes,  yer,  76  Me.  539,  it  was  held  that 
but  may  exclude  common  brawlers  "  mere  apprehension  of  insult  is  no 
and  any  who  come  with  intent  to  excuse  for  an  innkeeper's  refusal  to 
commit  an  assault  or  make  an  affray,  receive  a  person  as  guest,  without 
So  he  may  prohibit  to  enter  one  circumstances  and  facts  justifying 
whose  misconduct  in  other  particu-  such  apprehension." 
lars,  or  whose  filthy  condition,  would  18  Coke,  32;  Ten  Brock  v.  Wells, 
subject  his  guests  to  annoyance.  Fargo  &  Co.,  47  Fed.  690;  McHugh 
And  it  has  been  held  an  innkeeper  v.  Schlosser.  159  Pa.  St.  408. 
may  refuse  to  receive  a  disorderly  -'  In  Scott  v.  Churchill,  15  Misc. 
guest,  or  require  him  to  leave  his  (N.  Y.)  80,   affirmed  in  157  N.  Y.  693, 

342 


CH.  III.]  LIABILITY.  [§§  370,  371. 

has  been  held,  if  the  guest  should  be  injured  by  the  falling  of 
a  ceiling  in  the  inn,  which  was  due  to  the  negligence  of  the 
innkeeper  in  keeping  the  same  in  repairs, —  in  all  such  cases 
the  guest  would  have  an  action  against  the  innkeeper,  based 
upon  want  of  ordinary  care.  There  is,  however,  this  limita- 
tion: "The  general  duty  of  an  innkeeper  to  take  proper  care 
for  the  safety  of  his  guest  does  not  extend  to  every  room  in 
his  house  at  all  hours  of  the  night  or  day,  but  must  be  limited 
to  those  places  into  which  guests  may  be  reasonably  supposed 
to  be  likely  to  go  in  a  reasonable  belief  that  they  are  entitled 
or  invited  to  do  so."  ^ 

§370.  Injuries  from  fire. —  The  liability  of  the  innkeeper 
for  injuries  to  guests  occasioned  by  fire  rests  upon  the  proof 
of  negligence  upon  the  part  of  the  innkeeper.  If  it  can  be 
shown  that  the  innkeeper  was  not  guilty  of  negligence,  and 
that  by  exercising  ordinary  diligence  the  injury  could  not  have 
been  averted,  in  such  case  at  common  law  there  would  be  no 
liability.  In  some  of  the  states,  however,  statutes  have  been 
passed  requiring  innkeepers  to  provide  fire-escapes.  If  an  in- 
jury was  occasioned  by  reason  of  the  failure  of  the  innkeeper 
to  comply  with  the  statute,  he  would  be  liable;  but  even  where 
such  statutes  exist,  if  it  should  be  shown  that  the  guest  who 
was  injured  could  not  have  effected  an  escape  or  averted  the 
injury  by  the  use  of  the  fire-escape,  then  the  mere  fact  that 
there  was  no  fire-escape  provided  would  not  be  sufficient  to  fix 
the  liability  upon  the  innkeeper,  if  there  was  no  want  of  ordi- 
nary diligence  upon  his  part.  In  other  words,  it  would  be 
necessary  to  show  that  the  injury  occurred  in  consequence  of 
the  want  of  a  fire-escape.^ 

§371.  Unsanitary  condition  of  the  inn  and  unwholesome 
food. —  Upon  the  same  principle  it  is  the  duty  of  the  innkeeper 

it  was  held  that  "a  guest  at  a  hotel  Abraham.  45  Hun.  238;    Dawson  v. 

is   entitled  to   recover    for   injuries  Sloan,  100  N.  Y.  620;  19  111.  A  pp.  571; 

caused   by  the  fall  of  a  passenger-  152  Mass.  513. 

elevator,    if    the    hotel-keeper    was        ^  Walker  v.  Midland  R.  Co.,  5 )  L.  T. 

chargeable  with  negligence  in  allow-  (N.   S.)  489;  Oxford  v.  Prior,   14  W. 

ing  the  elevator  to  become  unsafe.  R.  611;  Sandys  v.  Florence,  47  L.  J. 

And  so  it  becomes  the  duty  of  the  C.    P.  598;   Stanley    v.   Biercher,  78 

proprietor  of  an  hotel  or  apartment-  Mo.  245;  Ten  Brock  v.  Wells,  47  Fed. 

house  to  guard  the  shaft  so  that  per-  690. 

sons  shall  not  be  injured  by  falling        •^  Weeks  v.  MacNulty,  101  Tenn.  495. 

or  stumbling  into  it."     Atkinson  v. 

3i3 


§  3T2.J  INNKEEPERS BOAKDING-HOUSE    KEEPERS.       [PART    III. 

to  exercise  at  least  ordinary  diligence  in  keeping  the  hotel  in 
a  sanitary  condition.  He  holds  out  to  the  public  impliedly, 
by  inviting  them  to- his  inn,  that  they  will  be  entertained  in  a 
place  that  is  fit  for  the  purpose  for  which  it  is  kept.  Where, 
therefore,  one  by  reason  of  the  unsanitary  condition  of  the 
hotel  contracts  a  disease,  or  where  by  reason  of  the  condition 
of  the  hotel  he  is  subjected  to  some  contagious  disease,  in 
such  case  the  innkeeper  would  be  liable.  And  the  same  obli- 
gation rests  upon  him  with  reference  to  food.  It  is  his  duty 
to  furnish  to  the  guests  wholesome  food ;  and  where,  by  reason 
of  the  unwholesomeness  of  food,  guests  are  injured,  a  liabilit}^ 
attaches  to  the  innkeeper  and  an  action  can  be  sustained.^ 

§  372.  Limiting  liability. —  There  seems  to  be  no  reason  why 
the  innkeeper  cannot  expressly  or  impliedl}^  contract  to  limit 
his  liability  for  the  loss  of  the  property  of  his  guest,  as  it  is  en- 
tirely a  question  of  property  rights  in  which  the  public  can 
have  no  interest,  and  public  policy  would  not  oppose  it  if  the 
limitation  did  not  go  to  the  extent  of  excusing  gross  negli- 
gence; for  as  a  general  rule,  no  matter  to  what  extent  the  lim- 
itation is  attempted,  the  liability  will  be  that  of  an  ordinary 
bailee.-  The  innkeeper  can  no  doubt  by  a  regulation  require 
his  guests  to  deposit  their  valuable  articles  in  a  safe  or  vault 
provided  by  him,  and  this  regulation  may  be  brought  home  to 
the  guest  by  notice;  but,  as  has  already  been  stated,  such  notice 
must  be  brought  to  the  personal  attention  of  the  guest.^     In 

1  Sheffer  v.  Wiloughby,  163  IlL  518,  responsible  in  case  of  loss.  Wilson 
54  Am.  St.  Rep.  483.  Where  an  inn-  v.  Halpin,  1  Daly  (N.  Y.),  496.  Gen- 
keeper,  with  knowledge  of  the  prev-  eral  notice,  however,  is  not  sufficient, 
alence  of  smallpox  in  his  liotel.  per-  Stanton  v.  Leland,  4  E.  D.  Smith 
mitted  a  person  to  become  a  guest  (N.  Y.),  88.  The  notice  must  be 
witiiout  informing  her  of  the  pres-  brought  home  to  the  guest.  The  fact 
ence  of  the  disease,  it  was  held  that  that  it  was  posted  on  the  door  of  the 
the  innkeeper  would  be  liable  to  the  guest's  room  is  not  sufficient  to  raise 
guest  if  she  contracted  the  disease  a  presumption  that  he  had  knowl- 
while  in  the  house,  and  was  herself  edge  thereof.  Bodwell  v.  Bragg,  29 
guilty  of  no  negligence  contributing  Iowa,  233.  And  where  an  agreement 
to  the  injury.  that  the  innkeeper  shall  not  be  re- 

2Pinkerton  v.  Woodward,  33  Cal.  sponsible  for  tlie  loss  of  valuables 

o47.  unless  deposited  in  the  safe  is  printed 

3  Where  a  guest  is  notified  that  he  upon  the  register  heading,  and  the 

must  deposit  his  baggage  in  a  par-  guest  signs  the  register,  it  is  held  not 

ticular  place  for  safe-keeping  and  he  to  constitute  a  contract,  or  to  be 

neglects  to  do  so,  the  innkeeper  is  not  binding  upon  the  guest,  in  the  ab- 

344 


€H.   III.]  LIABILITY.  [§§  373,   374:. 

most  of  the  states,  however,  this  matter  is  regulated  by  statute. 
The  duties  and  the  liabilities  of  the  innkeeper  are  fixed,  as  well 
as  the  duty  of  the  guest. 

§  373.  Innkeeper  liable  as  ordinary  bailee. —  Where  the 
extraordinary  liability  of  an  innkeeper  does  not  attach  for  the 
loss  of  the  goods  of  the  guest,  the  innkeeper  may  be  liable  as 
an  ordinary  bailee.  As,  for  example,  where  the  goods  of  the 
guest  are  kept  for  show  or  sale,  or  where  goods  are  held  by 
the  innkeeper  for  charges  after  the  guest  has  departed,  or  for 
goods  and  baggage  of  a  regular  boarder,  as  we  have  already 
seen,'  or  for  the  goods  of  a  guest  who  has  paid  his  bill  and 
left  the  hotel,  leaving  his  baggage  in  charge  of  the  innkeeper, 
for  a  reasonable  length  of  time  the  innkeeper  is  held  to  be 
liable  as  an  ordinary  bailee.^ 

§  374.  Liable  as  gratuitous  bailee. —  For  goods  deposited 
with  the  innkeeper  for  safe-keeping  but  without  recompense, 
as  where  baggage  is  left  by  one  not  a  guest  at  the  hotel,  the 
innkeeper,  deriving  no  benefit,  is  a  gratuitous  bailee  and  liable 
only  as  such;  and  the  same  rule  would  apply  where  the  goods 
of  a  departed  guest  had  been  left  with  the  innkeeper  for  an 
unreasonable  length  of  time,  and  in  such  case  the  innkeeper 
would  be  liable  only  for  gross  negligence. 

sence  of  proof  that  he  saw  it  ana  hotels,  innkeepers  more  or  less  gener- 

asseuted  to  it.  Bernstein  v.  Sweeney,  ally  respond  to  this  demand  and  pro- 

33  N.  Y.  Sup.  Ct.  271.     See  ante,  i^  859.  vide  increased  accommodations  and 

1  Fisher  v  Kelsey,  121  U.  S.  383,  16  assume  voluntarily  duties  respecting 
Fed.  R.  71-74;  Carter  v.  Hobbs,  12  the  baggage  of  the  guests  thus  left 
Mich.  52;  Mowers  v.  Fethers,  61  N.  Y.  in  their  charge.  In  such  case,  if  the 
34,  19  Am.  Rep.  244,  247.  liability  of  the  innkeeper  is  that  of 

2  Adams  v.  Clem.  41  Ga.  65;  Mur-  voluntaiy  bailee  without  compensa- 
ray  v.  Marshall,  9  Col.  482.  In  Giles  tion,  guests  are  left  with  little  or  no 
V.  Fountelroy,  18  Md.  126,  it  was  protection.  The  case  shows  a  tend- 
said:  "Departing  guests  not  infre-  ency  to  enlarge  it.  And  so  in  this 
quently  leave  baggage  in  care  of  the  case  it  was  held  that  when  a  guest, 
innkeeper  for  a  few  hours  or  a  few  on  leaving  an  hotel  without  the  in- 
days.  to  be  called  for  or  to  be  for-  tention  of  returning  as  a  guest,  fails 
warded  to  some  designated  destina-  to  pay  his  bill,  but  returns  within 
tion.  The  great  increase  of  modern  forty-eight  hours  to  get  his  valise, 
travel  creates  an  increased  demand  the  innkeeper  was  bound  to  ordinary 
for  more  extensive  accommodations  diligence,  and  the  loss  of  the  valise 
in  this  respect.  With  a  view  of  in-  x-aised  the  presumption  of  uegli- 
fiuencing  travelers  in  selecting  their  gence." 

345 


CHAPTER  lY. 


COMPENSATION  AND  LIEN  OF  THE  INNKEEPER. 


375.  Compensation  —  Lien. 

376.  The  lien  a  common  law  lien. 

377.  Amount  of  compensation. 

378.  If  the  guest  an  infant. 

379.  The  property  of  third  persons. 

380.  Same  subject. 

381.  The  guest  a  servant,  agent  or 

bailee  of  the  owner. 

382.  Whex-e    the   property  is  ani- 

mate. 


§  383.  Where  the  guest  has  wrong- 
fully possessed  himself  of 
the  property. 
384  The  lien  of  the  innkeeper  fixed 
by  statute. 

385.  The  lien  lost  or  waived. 

386.  Cannot  be  revived. 

387.  Boarding-house  keeper. 


§  375.  Compensation  —  Lien. —  The  innkeeper  is  bound  to 
receive  all  who  apply  at  his  inn  for  entertainment,  subject  to  cer- 
tain limitations  already  discussed,  and  is  liable  if  he  fails  to 
exercise  that  high  degree  of  diligence ;  in  some  cases  the  liabil- 
ity even  approaching  that  of  an  insurer,  as  we  have  seen.  For 
this  entertainment  and  care  he  is  entitled  to  compensation,  which 
he  ma}^  demand  in  advance  if  he  chooses  to  do  so  —  a  compensa- 
tion limited  only  by  reasonableness  in  amount.  The  payment  of 
this  is  secured  to  the  innkeeper  by  a  lien  on  the  baggage  or 
property  of  the  guest  brought  within  the  inn,^  the  lien  being  a 
general  lien  upon  the  property  infra  hosjjitiuni,  attaching  not 
only  to  property  within  the  hotel,  but  to  animals  and  property 
in  the  stables  or  barns  of  the  innkeeper;  and  not  only  for  the 
keep  of  the  guest,  but  for  the  keep  of  the  animals  or  property, 
and  for  any  extras,  as  for  wine  or  entertainment  given  by  the 
guest  to  his  friends.  And  this  lien  is  not  limited  to  the  prop- 
erty of  the  guest  infra  hospitixim  not  exempt  from  execution ; 
such  exempt  property  is  subject  to  the  innkeeper's  lien ;-  and  so 

1  Rosenplaenter  v.  Roessle,  54  N.  Y. 
262;  Manning  v.  Hollenbeck,  27  Wis. 

/202;  Proctor  v.  Nicholson,  7  Car.  & 
Pay.  67;  Turrell  v.  Crawley,  13  Q.  B. 
197;  Alvord  v.  Davenport,  43  Vt.  30. 

2  Swan  V.  Bourne,  47  Iowa,  501,  29 
Am.  Dec.  492.     But  it  has  been-  held 


that  a  lien  cannot  attach  to  horses 
carrying  United  States  mail.  United 
States  V.  Braney,  2  Wheel.  C.  C.  513. 
But  see  Young  v.  Kimball,  23  Pa.  St. 
193.  It  is  now  generally  held  that 
the  lien  is  a  general  one  and  at- 
taches to  all  of  the  property  brought 


346 


CH.  IV.]       COMPENSATION    AND    LIEN    OF    INNKEEPER.       [§§  376-378. 

is  the  property  of  an  infant  guest  if  brought  within  the  inn  and 
into  the  legal  custody  of  the  innkeeper;  ^  and  so  also  is  the  prop- 
erty of  a  married  woman  for  her  keep,  care  and  entertainment 
while  a  guest. 

In  England  it  has  been  held  that  the  separate  property  of  a 
married  woman  would  become  subject  to  the  lien  of  the  land- 
lord where  credit  was  given  to  the  husband  to  make  payments 
on  account;  the  balance  of  the  innkeeper's  bill  not  being  paid. 
In  that  case  the  innkeeper  was  allowed  to  detain  the  wife's 
luggage  notwithstanding  it  was  the  separate  property  of  the 
wife.- 

§  376.  The  lien  a  coninion-law  lien. —  The  lien  is  a  common- 
law  lien  upon  all  the  property  brought  Avithin  the  inn  by  the 
guest  and  in  the  custody  of  the  innkeeper.  There  is  no  lim- 
itation except  by  statute,  and  the  statutes  do  not  generally 
limit,  but  more  often  enlarge,  the  scope  of  the  lien.  The  laws- 
exempting  property  from  levy  and  sale  on  execution  are  special 
limitations  upon  the  general  execution  and  are  only  inoperative 
to  the  extent  of  such  limitation;  and  so  in  the  case  in  ques- 
tion, if  there  are  no  special  limitations  by  statute,  the  common- 
law  lien  would  attach  to  all  the  property  of  the  guest,  as  we 
have  said.' 

§377.  Amount  of  compensation. —  The  amount  of  com- 
pensation the  innkeeper  is  entitled  to  receive  and  charge  and 
which  will  be  secured  by  his  lien,  as  a  general  rule,  may  be 
said  to  be  whatever,  under  all  the  circumstances  of  the  case 
and  the  general  usage  of  the  business  in  the  locality  where  the 
inn  or  hotel  is  situated,  would  be  considered  reasonable;  and 
this  amount  includes  the  reasonable  charges  for  the  lawful 
entertainment  of  friends  of  the  guest  who  have  been  invited  by 
him  to  the  inn  for  entertainment,  as  well  as  the  wine,  cigars, 
and  extras  which  he  may  order  for  said  entertainment,  or  which 
he  may  have  had  while  a  guest  at  the  hotel, 

§  378.  If  the  guest  an  infant. —  If  the  guest  is  an  infant, 
it  would  seem  on  general  principles  governing  the  law  of  deal- 
by  the  guest  to  the  hotel.  Milliner  i  Watson  v.  Cross,  2  Duv.  (Ky.)  147. 
V.  Florence,  L.  R,  3  Q,  B,  Div,  484,  2  Gordon  v.  Silver,  59  L,  J.  Q.  B,  507^ 
But  does  not  attach  to  the  person  or  25  Q.  B.  Div.  491,  63  L.  T.  (N.  S.)  283. 
clothing  of  the  guest.  Sunbolf  v.  Al-  ''Swan  v.  Bourne,  47  Iowa,  501, 
vord,  3  Mees.  &  W.  248. 

347 


§379.]  INNKEEPERS BOARDING-HOUSEKEEPERS.       [PARTIII. 

ings  with  infants,  that  there  might  be  some  limitation  upon 
this  general  rule  as  to  the  amount  for  Avhich  charges  could 
be  made  by  the  innkeeper  and  the  lien  attach  to  the  property 
of  the  infant  for  the  amount.  Generally,  as  is  well  understood, 
an  infant  is  liable  for  necessaries  and  for  benefits  in  certain 
cases;  but  to  say  that  wine  suppers  and  extravagant  extras  are 
necessaries  might  be  an  enlargement  of  the  rule  of  law,  to 
say  the  least,  if  not  an  utter  violation  of  the  principle. 

In  Proctor  v.  Nicholson  ^  it  is  said:  "  The  landlord  of  an  inn 
may  supply  whatever  things  the  guest  orders,  and  the  guest  is 
bound  to  pay  for  them,  provided  the  guest  be  possessed  of  his 
reason  and  is  not  an  infant.  In  either  of  these  latter  cases  the 
landlord  must  look  to  himself."  The  question,  however,  as  to 
what  are  necessaries  is  more  or  less  uncertain  and  difficult  of 
determination;  it  is  a  question  for  the  jury,  to  be  determined 
under  all  the  circumstances  of  the  case  under  the  direction  of 
the  court. 

§  379.  The  property  of  third  persons. —  The  English  rule 
seems  to  have  been  followed  by  the  courts  in  some  instances, 
though  it  would  seem  not  to  have  been  very  wisely  reasoned 
out.  This  rule  is,  that  because  of  the  exceptional  liability 
of  the  innkeeper,  approaching  almost  that  of  an  insurer  of  the 
goods  brought  within  the  inn  by  the  guest,  and  because  Hie 
law  makes  it  incumbent  upon  him  to  receive  the  goods  of 
the  traveler  or  guest,  that  therefore  he  may  have  a  lien  for  his 
compensation  upon  whatever  goods  or  property  is  brought  by 
the  guest  into  the  inn  and  placed  in  the  custody  of  the  inn- 
keeper, without  reference  to  the  question  of  ownership;  and, 
indeed,  the  courts  have  gone  so  far  as  to  hold  that  the  inn- 
keeper may  even  have  a  lien  upon  the  property  brought  within 
the  inn  by  the  guest,  although  it  be  property  stolen  by  the 
guest,  if  the  innkeeper  has  no  knowledge  of  that  fact  and  re- 
ceives it  into  his  custody  on  the  faith  of  the  innkeeping  rela- 
tion. 

The  most  vigorous  discussion  and  contention  for  this  English 
rule  may  be  found  in  the  case  of  RoUns  &  Co.  v.  Gray.-  In 
that  case  the  court  say  "I  have  no  doubt  about  this  case.  I 
protest  against  being  asked,  upon  some  new  discovery  as  to 
the  law  of  innkeeper's  lien,  to  disturb  a  well-known  and  very 

1 7  Car.  &  P.  67.  2  l.  R.  2  Q.  B.  Div.  (1895),  501,  503. 

348 


CH.  IV.]  COMPENSATIOJSr    AND    LIEN    OF    INNKEEPER.  [§  379.. 

large  business  carried  on  in  this  country  for  centuries.     The 
duties,  liabilities  and  rights  of  innkeepers  with  respect  to  goods 
brought  to  inns  by  guests  are  founded,  not  upon  bailment,  or 
pledge,  or  contract,  but  upon  the  custom  of  the  realm  with 
regard  to  innkeepers.     Their  rights  and  liabilities  are  depend- 
ent upon  that,  and  that  alone ;  they  do  not  come  under  any  other 
head  of  law.     What  is  the  liability  of  an  innkeeper  in  this  re- 
spect?    If  a  traveler  comes  to  an  inn  with  goods  which  are 
his  luggage  —  I  do  not  say  his  personal  luggage,  but  his  lug- 
gage,—  the  innkeeper  by  the  law  of  the  land  is  bound  to  take 
him  and  his  luggage  in.     The  innkeeper  cannot  discriminate 
and  say  that  he  will  take  in  the  traveler  but  not  his  luggage^ 
If  the  traveler  brought  something  exceptional  which  is  not 
luggage  —  such  as  a  tiger  or  a  package  of  dynamite, —  the  inn- 
keeper might  refuse  to  take  it  in;  but  the  custom  of  the  realm 
is  that,  unless  there  is  some  reason  to  the  contrary  in  the  ex- 
ceptional character  of  the  things  brought,  he  must  take  in  the 
traveler  and  his  goods.     He  has  not  to  inquire  whether  the 
goods  are  the  property  of  the  person  wiio  brings  them  or  of 
some  other  person.     If  he  does  so  inquire,  the  traveler  may  re- 
fuse to  tell  him,  and  may  say, '  what  business  is  that  of  yours? 
I  bring  the  goods  here  as  my  luggage,  and  I  insist  upon  your 
taking  them  in; '  or  he  may  say,  'they  are   not  my  property,, 
but  1  bring  theni  here  as  my  luggage,  and  I  insist  upon  your 
taking  them  in;'  and  then  the  innkeeper  is  bound  by  law  to 
take  them  in.     Again,  suppose  the  things  brought  are  such 
things  as  the  innkeeper  is  not  bound  to  take  in;  he  may,  as  I 
have  said,  refuse  to  take  them  in  although  the  traveler  de- 
mands that  they  shall  be  taken  in  as  his  luggage;  but  if  after 
that  the  innkeeper  changes  his  mind  and  does  take  them  in,, 
then  they  are  in  the  same  position   as  goods  properly  offered 
to  the  innkeeper  according  to  the  custom  of  the  realm.    Then 
the  innkeeper's  liability  is  not  that  of  a  bailee  or  pledgee  of 
goods;  he  is  bound  to  keep  them  safely.     It  signifies   not,  sa 
far  as  that  obligation  is  concerned,  if  they  are  stolen  by  burg- 
lars, or  by  the  servants  of  the  inn,  or  by  another  guest;  he  is 
liable  for  not  keeping  them  safely  unless  they  are  lost  by  the 
fault  of  the  traveler  himself.     That  is  a  tremendous  liability; 
it  is  a  liability  fixed  upon  the  innkeeper  by  the  fact  that  he 
has  taken  the  goods  in;  and  by  law  ho  has  a  lien  upon  them 

349 


§  379.]  INNKEEPERS BOARDING-HOUSE    KEEPERS.       [PART    III. 

for  the  expense  of  keeping  them  as  well  as  for  the  cost  of  the 
food  and  entertainment  of  the  traveler.  By  law  that  lien  can 
be  enforced,  not  only  against  the  person  who  has  brought  the 
goods  into  the  inn,  but  against  the  real  and  true  owner  of  them. 
That  has  been  the  law  for  two  or  three  hundred  years;  but 
to-day  some  expressions  used  by  judges,  and  some  questions  — 
immaterial,  as  it  seems  to  me  —  which  have  been  left  to  juries, 
are  relied  on  to  establish  that  if  the  innkeeper  knows  that  the 
goods  are  not  the  goods  of  the  person  who  brings  them  to  the 
inn,  he  may  refuse  to  take  them  in ;  or,  if  he  does  take  them 
in,  he  has  no  lien  upon  them.  One  cannot  help  asking,  "What 
is  this  liability  supposed  to  be  if  he  does  take  in  goods  under 
such  circumstances  ?  It  must  be  borne  in  mind  that  goods 
brought  into  an  inn  are  not  exclusively  in  the  possession  of  the 
innkeeper;  the  person  who  brings  them  may  deal  with  them; 
he  may  take  them  out  of  a  box  in  a  room  or  passage  without 
the  knowledge  of  the  innkeeper,  though  the  latter  is  bound  to 
see  that  no  one  interferes  with  them.  Xow,  is  there  any  de- 
cided case  in  which  it  has  been  held  that,  although  goods  have 
been  brought  to  an  inn  as.  the  luggage  of  the  traveler  and  re- 
ceived as  such  by  the  innkeeper,  he  has  no  lien  upon  them  if 
he  knows  that  they  are  not  the  goods  of  the  traveler?  There 
is  not  one  such  case  to  be  found  in  the  books." 

In  the  case  of  Gordon  v.  Silver^  the  court  say:  "  B}'-  the  com- 
mon law  of  England  every  person  who  keeps  a  common  inn  is 
under  an  obligation  to  receive  and  afford  proper  entertainment 
to  every  one  who  offers  himself  as  a  guest,  if  there  be  sufficient 
room  for  him  in  the  inn,  and  no  good  reason  for  refusing  him. 
The  innkeeper  is  under  an  obligation  to  keep  the  goods  of  a 
guest  received  into  the  inn  safely  and  securely,  and  can  be  sued 
and  made  liable  in  damages  if  he  fails  in  this  respect.  As  a 
compensation  for  the  burden  thus  imposed  upon  him,  the  law 
has  given  him  a  lien  upon  the  goods  of  the  guest  until  he  dis- 
charges the  expenses  of  his  lodging  and  food.  If  the  guest 
has  brought  goods  to  the  inn  to  which  he  has  no  title,  this  will 
not  deprive  the  innkeeper  of  his  lien,  because  he  is  obliged  to 
receive  the  guest  without  inquiries  as  to  his  title.  It  seems, 
therefore,  that  the  lien  is  commensurate  with  the  obligation  to 
receive  the  guests  and  to  keep  safely  and  securely  his  goods. 

1 L.  R.  25  Q.  B.  (1890),  491,  493. 
350 


CH.  IV.]  COMPENSATION    AND    LIEN    OF    INNKEEPER.  [§  379. 

The  right  of  lien  of  an  innkeeper  depends  upon  the  fact  that 
the  goods  came  into  his  possession  in  his  cliaracter  of  inn- 
keeper, as  belonging  to  a  guest." 

Other  English  cases  might  be  cited ;  and  there  seems  to  be 
no  variation  as  to  the  holding  of  the  English  courts.  Ameri- 
can courts  have  also  followed  the  English  rule. 

In  an  early  case,  Grinnell  v.  Cook}  a  Xew  York  case,  the 
court  say:  "The  innkeeper  is  bound  to  receive  and  entertain 
travelers  and  is  answerable  for  the  goods  of  the  guest,  although 
they  may  be  stolen  or  otherwise  lost  without  any  fault  on  his 
part.  Like  a  common  carrier  he  is  an  insurer  of  the  property, 
and  nothing  but  the  act  of  God  or  the  public  enemy  would  ex- 
cuse a  loss.  On  account  of  this  extraordinary  liability  the  law 
gives  the  innkeeper  a  lien  upon  the  goods  of  the  guest  for  the 
satisfaction  of  his  reasonable  charges.  It  was  once  held  that  he 
might  detain  the  person  of  the  guest,  but  that  doctrine  is  now 
exploded,  and  the  lien  is  confined  to  the  goods.  The  inquiry 
then  is  whether  the  plaintiff  received  and  kept  the  horses  as 
an  innkeeper.  In  other  words,  was  he  bound  to  receive  and 
take  care  of  them,  and  would  he  have  been  answerable  for  the 
loss  if  the  horses  had  been  stolen  without  any  negligence  on 
his  part  ?  The  lien  and  the  liability  must  stand  or  fall  to- 
gether. Innkeepers  cannot  claim  the  one  with  any  just  expec- 
tation of  escaping  the  other." 

And  in  a  Minnesota  case.  Singer  Mfg.  Co.  v.  lliller,'^  it  seems 
to  have  been  conceded  by  counsel  without  argument  that  this 
was  the  prevailing  rule.  The  court  say:  "The  plaintiff's 
counsel  does  not  seriously  contest  the  proposition  that  the  inn; 
keeper  may  have  such  lien  on  the  goods  in  the  possession  of 
his  guest  infra  hospitiuni,  though  they  belong  to  a  third  per- 
son, provided  the  innkeeper  has  no  notice  c^f  that  fact.  If  the 
innkeeper's  liability  would  attach  in  case  the  sewing-machine 
was  lost  or  stolen,  it  would  seem  but  just  to  hold  that  his  lien 
attaches  whenever  there  is  a  corresponding  liability." 

The  supreme  court  of  Wisconsin,  without  opposition  of  coun- 
sel, seems  to  concede  the  English  rule,  but  in  the  case  cited  the 
property  was  lawfully  in  the  possession  of  the  guest  as  the 
agent  and  traveling  salesman  of  the  owner.* 

13  Hill  (N.  Y.),  485,488.  3  Manning  v.  Hollenbeck,  27  Wis. 

2  53  Minn.  516,  518.  203.     A  most  extreme  case  may  be 

351 


§379.]  INNKEEPERS BOAKDING-HOUSE   KEEPERS,       [PART    III. 

In  Oregon,  the  court,  in  Cooli  v.  Kane^  declare  this  to  be  the 
common-law  rule;  that  it  is  not  restricted  to  the  ordinary  bag- 
gage or  luggage  of  the  guest.  The  court  say:  "  Whatever  con- 
troversy may  exist  in  the  judicial  mind  as  to  the  true  measure 
of  the  innkeeper's  responsibility,  it  cannot  be  denied  that  his 
liability  for  the  loss  of  the  goods  of  his  guest  is  extraordinary 
and  exceptional.  Compelled  to  afford  entertainment  to  whom- 
soever may  apply  and  behave  with  decency,  the  law  as  an  in- 
demnity for  the  extraordinary  liabilities  which  it  imposes  has 
clothed  the  innkeeper  with  extraordinary  privileges.  It  gives 
him  as  a  security  for  unpaid  charges  a  lieu  upon  the  property 
of  his  guest,  and  upon  the  goods  put  by  the  guest  into  his  pos- 
session. Kor  is  the  lien  confined  to  property  only  owned  by 
the  guest,  but  it  will  attach  to  the  property  of  third  persons 
for  whom  the  guest  is  bailee,  provided  only  he  received  the 
property  on  the  faith  of  the  innkeeping  relation.  But  the  lien 
will  not  attach  if  the  innkeeper  knew  the  property  taken  in 
his  custody  was  not  owned  by  his  guest,  nor  had  no  right  to 
deposit  it  as  bailee  or  otherwise,  except,  perhaps,  some  proper 
charge  incurred  against  the  specific  chattels." 

In  this  case,  however,  there  seems  to  be  some  comfort  and 
good  reasoning  in  the  dissenting  opinion  by  Judge  Thayer, 
who,  at  page  491,  says:  "Upon  the  main  question  in  the  case 
there  is  some  doubt  in  view  of  the  authorities  upon  the  subject, 
though  upon  a  common-sense  view  there  would  not  seem  to  be 
any.  That  the  man  could  pledge  the  appellant's  property  for 
his  o^vn  hotel  bill,  or  in  any  way  subject  it  to  the  payment 
thereof,  would  shock  all  sense  of  property  right.  Eespondent's 
counsel,  however,  have  cited  numerous  cases  where  such  a  lien 
has  attached  to  the  property  of  a  third  person,  and  I  have  no 
doubt  that  such  lien  will  in  many  cases  attach  to  the  property 
taken  by  the  guest  to  the  inn  at  which  he  obtains  accommoda- 
tion, though  he  is  not  the  owner  of  it.  But  in  such  cases  it 
seems  to  me  the  property  must  derive  some  special  benefit  or 

found  in  Black  v.  Brennan,  5  Dana  owner;  and  in  that  case  the  court al- 

(Ky.),  811,  where  the  court  held  that  lowed  the  property  to  be  sold  and 

property  brought  within  the  inn  by  the  amount  received  to  be  applied 

a  guest,  which  he  had  stolen,  would  upon  the  innkeeper's  claim, 
be  subject  to  the  innkeeper's  lien,        1 13  Oreg.  483. 
even  though  claimed  by  the  true 

352 


CH.  IV.]       COMPENSATION    AND    LIEN   OF   INNKEEPEK.     [§§  380,  381. 

else  the  owner  must  have  intrusted  it  to  a  party  under  circum- 
stances from  which  he  could  reasonably  have  concluded  that 
the  party  would  become  the  guest  of  an  inn  and  take  the  prop- 
erty with  him  there  as  his  own,  and  I  do  not  think  the  rule 
should  extend  further  than  this."  And  in  Domestic  Sewing' 
Machine  Co.  v.  Waiters  ^  the  court  has  broken  away  from  this. 
English  rule  and  based  an  opinion  somewhat  upon  reason, 
holding  that  the  innkeeper  has  no  lien  on  the  goods  in  pos- 
session of  his  guest  as  against  the  true  owner,  unless  there 
be  charges  upon  the  specific  article  on  which  the  lien  is  claimed. 

§  380. .  The  further  consideration  of  the  cases  and  the 

law  of  the  subject  logically  divides  itself  into  three  distinct 
classes,  namely: 

(1)  Where  the  guest  in  possession  of  the  property  is  the  serv- 
ant, agent,  or  bailee  of  the  owner. 

(2)  Where  the  property  in  possession  of  the  guest  is  animate. 

(3)  Where  the  guest  in  possession  of  the  property  is  a  wrong- 
doer in  respect  to  it,  having  obtained  possession  of  it  without 
the  consent  of  the  owner  —  a  trespasser  or  a  thief. 

§  381.  The  guest  a  servant,  agent,  or  bailee  of  the  owner. 
Where  the  guest  is  a  servant,  agent,  or  bailee  of  the  owner  of 
the  property,  and  engaged  in  the  business  of  the  owner  —  as, 
for  example,  a  traveling  salesman, —  and  carries  the  goods  into 
the  inn,  and  in  the  course  of  the  business  of  his  principal  the 
property  is  in  the  care  and  custody  of  the  innkeeper  in  his  inn- 
keeping  relation,  his  right  to  have  the  lien  attach  to  secure  his 
compensation  would  seem  to  rest  upon  good  legal  reasoning; 
for  if  the  guest  is  a  servant  of  the  owner,  and  the  relation  of 
innkeeper  and  guest  is  created  at  a  time  when  the  servant  is 
engaged  in  the  service  of  the  own,er,  or  at  a  time  when  a  bailee 
is  pursuing  the  object  of  the  bailment  for  the  benefit  of  the 
owner,  the  owner  knowing  the  facts  in  such  cases,  it  might  be 
said  that  the  owner  impliedly  consented  that  his  property  sliould 
be  subjected  to  the  lien  of  the  innkeeper  in  case  his  compensa- 
tion was  not  paid,  for  such  a  situation  might  be  well  said  to  be 
an  incident  to  the  relation  into  which  the  owner  has  entered. 
Very  many  of  the  cases  involve  such  a  state  of  facts.^ 

1 50  Ga.  573;  Wycoff  v.  Southern    L.  R.  (1895),  2  Q.  B.  Div.  501,  was  one 
Hotel  Co.,  24  Mo.  App.  383.  of  a  commercial  traveler  emi)loyed 

2  The  case  of  Robins  &  Co.  v.  Gray,     by  a  firm  who  dealt  in  sewing  ma- 
23  353 


§^  3S2-3.J      INNKEEPERS BOAEDING-HOUSE    KEEPERS.       [p ART    III. 

§  382.  Where  the  property  is  animate. —  There  is  greater 
reason,  perhaps,  for  giving  to  the  innkeeper  a  lien  upon  animate 
property,  such  as  horses  or  other  animals,  which  are  taken  to 
the  inn  by  the  agent  or  servant  of  the  owner  in  the  transac- 
tion of  and  in  the  course  of  business  for  the  owner  and  left  with 
the  innkeeper  in  his  innkeeping  relation;  for  in  such  case  the 
subject  of  the  lien  must  have  its  keeping  and  care,  and  there  is 
a  direct  benefit  derived  therefrom  by  the  owner  of  the  prop- 
erty, and  the  lien  would  no  doubt  attach. 

§  383.  Where  the  guest  has  wrongfully  possessed  himself 
of  the  property. —  But  where  the  guest  has  wrongfully  pos- 
sessed himself  of  the  property,  it  would  do  violence  to  every 
principle  of  the  rights  of  ownership  of  property  to  allow  a  lien 
to  attach  for  the  keep  and  entertainment  of  the  guest  at  the 
inn,  or  for  keep  of  the  property  whether  animate  or  inanimate. 
As,  for  example,  in  case  of  stolen  property,  how  can  it  be  said 
that,  consistently  with  the  rights  of  ownership  of  property,  a 
thief  can  steal  and  carry  away  the  property  of  another,  and 
although  he  has  no  title  whatever  that  can  be  asserted  against 
the  rightful  owner,  yet  he  can  by  taking  it  to  an  hotel,  and 
himself  becoming  a  guest  and  failing  to  pay  the  compensation 
due  the  hotel  keeper,  confer  upon  the  innkeeper  a  lien  upon  the 
property  paramount  to  that  of  the  absolute  owner?  Such  a  doc- 
trine would  violate  every  principle  of  right  and  justice  and  the 
laws  governing  the  title  to  property. 

What  becomes  of  that  legal  right  which  protects  every  man 
in  the  enjoyment  of  his  own — that  he  may  retake  it  wherever 
he  may  find  it  if  he  has  been  feloniously  deprived  of  it  ?  It  is 
hardly  an  answer  to  say  that  because  the  innkeeper  is  by  law 
compelled  to  receive  a  guest  who  comes  to  his  inn,  if  he  is  a 
proper  person  and  he  has  room  and  can  take  care  of  his  bag- 
gage and  property  brought  within  the  inn,  that  he  is  entitled 

chines.  He  stopped  at  the  inn,  and  ceived  them  as  the  baggage  of  the 
while  there  machines  were  sent  to  traveler,  wlio  subsequently  left  them 
him  by  his  employers,  and  in  the  in  the  inn  without  paying  his  bill  for 
ordinary  course  of  business,  for  the  board  and  lodging.  So  in  the  case  of 
purpose  of  selling  them  to  customers  Manning  v.  Hollenbeck,  27  Wis.  203. 
in  the  neighborhood.  Before  the  This  was  a  case  of  a  commercial  trav- 
gcods  were  so  sent  the  innkeeper  had  eler,  a  guest  at  the  inn.  and  the  prop- 
express  notice  that  they  were  the  erty  was  a  trunk  of  samples  belong- 
property  of  the  employer,  but  he  re-  ing  to  his  principal 

354 


I 


CH.  IV.]  COMPENSATION    AND    LIEN    OF    INKKEEPEE.  [§  383. 

to  a  lien  upon  the  property  he  brings  into  the  inn;  for  in  this 
case  it  would  be  paramount  to  holding  that  he  is  entitled  be- 
cause of  this  to  deprive  a  legal  owner  of  his  title  to  property 
which  has  been  stolen  by  the  guest.  In  connection  with  this 
contention  it  should  be  remembered  that  the  innkeeper  is  not 
compelled  to  receive  a  guest  and  render  service  to  him  as  an 
innkeeper  and  depend  upon  receiving  compensation  therefor 
when  the  guest  shall  leave  his  house;  he  may  insist  upon  his 
legal  right  that  the  guest  pay  for  the  entertainment  in  advance. 
So  it  is  not  a  case  where  the  innkeeper's  only  relief  is  his  right 
to  a  lien  upon  the  property  which  the  guest  brings  into  the 
inn.  In  discussing  this  matter  it  would  seem  that  a  number  of 
the  courts  have^  blindly  followed  the  earlier  English  cases, 
without  discussing  the  reason  of  the  rule  which  they  adopted ; 
but  adopting  it  rather  by  way  of  following  adjudicated  cases 
than  by  the  exercise  of  good  judgment.^ 

When  we  stop  to  consider  that  builded  into  that  great 
fundamental  law  of  the  land,  the  constitution,  is  the  assurance 
to  every  citizen  that  he  shall  not  be  deprived  of  his  property 
without  "  due  process  of  law,"  and  that  this  bulwark  of  right 
cannot  be  set  aside,  altered  or  changed,  either  generally  or 
specially,  by  courts  or  executive  officers,  or  by  legislaturps 
themselves,  the  rule  under  discussion  and  contended  for  by 
some  of  the  English  courts  would  seem  to  be  utterly  antago- 
nistic to  the  rights  of  propert}'^  vouchsafed  to  every  American 
citizen.  "We  are  therefore,  because  of  these  observations,  con- 
strained to  say  that  the  law  in  this  country  will  not  give  to 
the  innkeeper  a  lien  for  his  compensation  upon  the  property 
of  third  persons  brought  by  the  guest  into  the  inn,  except  there 
exists  a  relation  between  the  guest  and  owner  like  that  of 
master  and  servant,  principal  and  agent,  or  possibly  bailor  and 
bailee,  and  that  at  the  time  the  guest  be  engaged  in  the  use  of 
the  property  in  the  carrying  out  of  the  particular  relation;  and 
that  this  applies  as  well  to  animate  as  inanimate  propert3^ 

We  are  aware  that  this  P^nglish  rule  has  been  quite  largely 
adopted  by  the  courts  of  this  country,  but  it  seems  to  us  that 
the  arguments  and  reasoning  of  the  court  in  arriving  at  a  con- 
clusion that  even  property  which  has  been  stolen  and  taken  to 
an  inn  by  a  guest  can  be  subjected  to  a  lien  of  a  landlord  is 

1  Domestic,  etc.  Co.  v.  Watters,  50  Ga.  573. 
355 


§  383.]  INNKEEPERS  —  BOARDING  HOUSE    KEEPERS.       [PART   III. 

not  in  accord  with  our  American  system;  it  certainly  must  be 
held  to  run  counter  to  that  provision  of  the  constitution  to 
which  we  have  already  called  attention. 

The  court  of  appeals  in  the  state  of  Missouri  have  written 
somewhat  vigorously  upon  this  proposition.  The  opinion  is  by 
Mr.  Justice  Thompson.  He  says:  "Xor  are  we  prepared  to 
agree  with  those  courts  which  have  found  a  plain  principle  of 
justice  in  a  rule  of  law  by  which  one  man's  property  is  confis- 
cated to  pay  another  man's  debts.  It  is,  to  sa}''  the  least, 
doubtful  whether  the  extraordinary  liability  which  the  com- 
mon law  imposed  upon  the  innkeeper  in  respect  of  goods 
brought  to  his  inn  by  his  guest  furnishes  a  good  reason  for 
such  a  rule.  It  is  also  doubtful  whether  such  a  rule  is  not  in 
conflict  with  the  spirit  of  those  guaranties  of  the  right  of  pri- 
vate property  which  are  embodied  in  American  constitutions. 
It  would  be  beyond  the  power  of  the  legislature  to  pass  a  law 
under  which  the  property  of  one  man  should  be  arbitrarily  taken 
from  him  and  o-iven  to  another  man.  If  the  lef^islature  could 
not  pass  such  a  law,  we  are  not  prepared  to  sanction  a  course 
of  reasoning  by  which  the  conclusion  is  arrived  at  that  the 
legislature  intended  to  preserve  such  a  rule  of  common  law, 
by  enacting  a  statute,  the  terms  of  which,  read  in  accordance 
with  their  sense,  import  the  contrary.  Again,  the  liability  of 
a  common  carrier  at  common  law  is  precisely  that  of  an  inn- 
keeper. He  is  liable  for  the  loss  or  damage  of  the  goods  com- 
mitted to  him  for  carriage  happening  from  every  other  cause 
except  the  act  of  God  or  the  public  enemy.  Both  the  liability 
of  the  carrier  and  that  of  the  innkeeper  were  grounded  at  com- 
mon law  upon  what  was  called  the  'custom  of  the  realm.' 
They  were  co-extensive  with  each  other,  had  their  origin  in 
the  same  source,  and  rested  upon  the  same  considerations  of 
public  policy.  And  yet  modern  American  courts  have  not 
hesitated  to  declare  that  a  common  carrier  has  no  lien  for  the 
carriage  of  goods,  which  he  has  innocently  received  from  a 
wrong-doer,  without  the  consent  of  the  owner,  express  or  im- 
plied. Upon  the  whole,  we  are  satisfied  that  the  lien  of  an 
hotel  or  innkeeper  does  not  exist  in  this  state  in  such  a  case 
as  the  present."  ^ 

iWyckoflf  V.  Southern  Hotel  Co.,  1  Doug.  (Mich.)  1:  Robhison  v.  Baker, 
21  Mo.  App.  382;  Fitch  v.  Newberry,     5  Cush.    137;  Stevens  v.   Boston  & 

356 


CH.  IV.]       COMPENSATION   AND    LIEN   OF   INNKEEPEE.      [§§  384,  385. 

§384.  The  lien  of  the  innkeeper  fixed  by  statute In 

almost  all  of  the  states  the  lien  of  the  hotel  keeper  upon  the 
goods  and  propert}^  of  the  guest  for  his  compensation  is  fixed 
and  regulated  by  statute,  and  bj-  statute  the  procedure  for  fore- 
closing the  lien  is  also  provided.  At  common  law  the  inn- 
keeper could  not  sell  the  property  and  thus  realize  the  amount  of 
his  compensation  except  by  a  proceeding  in  chancery,  but  now 
the  statutes  of  the  states  generally  provide  for  a  sale  from 
which  an  amount  may  be  realized  to  satisfy  the  expenses  of 
the  sale,  the  amount  of  compensation  due  the  innkeeper,  if 
sufficient  is  obtained,  and  the  balance,  if  any,  be  returned  to 
the  owner. 

§  385.  The  lien  lost  or  waived. —  The  lien  of  the  innkeeper 
may  be  lost  or  waived  in  the  several  ways  already  discussed.^ 

(1)  By  a  tender  to  the  innkeeper  of  his  proper  charges. 

(2)  By  the  innkeeper,  upon  demand  of  the  property,  placing 
his  refusal  to  deliver  it  upon  some  other  grounds  than  that  of 
the  non-payment  of  his  compensation  and  his  lien  upon  the 
goods.^ 

(3)  By  an  agreement  to  give  credit  to  the  guest,  because  such 
an  agreement  would  be  inconsistent  with  the  enforcement  of 
a  lien.^ 

In  Stoddard  Kfg.  Co.  v.  Huntley*  the  court  say:  "  The  oper- 
ation of  a  lien  is  to  place  the  property  in  pledge  for  the  pay- 
ment of  the  debt;  and  where  the  party  agrees  to  give  time  for 
payment,  or  agrees  to  receive  payment  in  a  particular  mode 
inconsistent  with  the  existence  of  such  a  pledge,  it  is  evidence, 
if  nothing  appears  to  the  contrary,  that  he  did  not  intend  to 
rely  upon  the  pledge  of  the  goods  in  relation  to  which  the  debt 
arose  to  secure  the  payment." 

(4)  By  delivery  of  the  goods  to  a  third  party  with  an  agree- 
ment that  the  lien  is  to  continue.  This  would  discharge  the 
lien  unless  the  third  party  is  under  the  control  of  the  inn- 
keeper. If  such  party  were  his  servant  or  his  agent  in  the 
transaction  of  the  particular  business,  in  such  case  it  would 
not  be  a  release  of  the  possession  of  the  property  and  the  lien 

W.  R.  Corp.,  8  Gray,  262;  Clark  v.  SMcMasters  v.  Merrick,  41  Mich. 
Lowell,  etc.  R.  Co.,  9  Gray,  231.  505. 

^Ante,^TS.  4  8  N.  EL  441. 

2Hamilton  v.McNulty,  145 Mass.  20. 

357 


g§  3S6-7.]      INNKEEPERS BOARDING-HOUSE    KEEIERS.       [PART    III. 

would  not  be  waived ;  but  if  it  were  a  person  over  whom  the 
innkeeper  had  no  control,  it  would  be  a  waiver  of  the  lien. 
Possession  is  essential  to  the  existence  of  the  lien,  and  when  it 
is  voluntarily  surrendered  the  lien  must  necessarily  fail. 

(5)  A  wrongful  sale  or  pledge  by  the  innkeeper  would  destroy 
the  lien,  but  a  lien  acquired  by  a  partnership  would  not  be  lost 
by  a  dissolution  of  the  partnership  and  an  assignment  of  the 
interest  of  one  of  the  partners  to  the  other. 

§  386.  Cannot  be  revived. —  If  the  innkeeper  once  parts  with 
the  possession  of  the  property  voluntarily,  or  loses  or  waives 
the  lien  in  any  of  the  ways  we  have  noticed,  the  lien  can- 
not be  revived  by  again  assuming  possession  of  it,  unless  he  has 
been  deprived  of  the  lien  by  fraud  or  misrepresentation  of  the 
guest  and  has  repossessed  himself  of  the  property  before  there 
are  any  intervening  rights,  as  that  of  innocent  purchasers, 
mortgagees  or  assignees.^ 

§  387.  Boarding-housekeeper. —  The  right  of  lien  is  not  ex- 
tended to  boarding-house  keepers.  There  are,  however,  stat- 
utes in  force  in  many  of  the  states  which  confer  upon  boarding- 
house  keepers  rights  which  are  substantially  the  same  as  the 
rights  of  innkeepers.^ 

1  Robinson  v.  Larrebee,  63  Me.  116;  Hursh  t.  Buyers,  29  Mo.  469;  Cross  v. 
Manning  v.  Hollenbeck,  27  Wis.  202;  Wilkins,  43  N.  H.  332;  Nichols  v.  Hol- 
Hickman  v.  Thomas,  16  Ala.  666.  liday.  27  Wis.  406;  Mills  v.  Shirley, 

2Pollect  V.  Landis,  36  Iowa,  651;     110  Mass.  158. 

858 


PAET  FOURTH 


POSTOFFICE  DEPARTMENT 

CHAPTER  I.  0^^^ 

POSTAL  SERVICE. 

§  388.  Liability  of  postoffice  depart-  I  §  390.  Liability. 

ment.  I      391.  Carriers  of  maiL 

389.  Postmasters. 

§  388.  Liability  of  postoffice  department. —  One  of  the  ex- 
ceptional bailments  recognized  by  the  law  is  that  of  receiving, 
carrying  and  delivering  the  mail.  The  mail  service  of  the 
country  is  intrusted  to  the  postoffice  department  of  the  govern- 
ment; it  is  under  its  general  supervision  and  control;  and  while 
in  the  performance  of  the  duties  connected  with  the  mail  service, 
not  only  letters  and  packages  that  may  be  properly  denominated 
as  mail  matter,  but  large  quantities  of  merchandise,  are  re- 
ceived and  carried.  But  it  can  hardly  be  said  that  the  relation 
of  a  common  carrier  of  goods  exists;  it  is  more  in  the  nature 
of  a  bailment  for  hire.  While  there  is  a  small  sum  paid  for 
the  carriage  by  way  of  postage,  it  is  not  an  amount  paid  for 
the  services,  nor  considered  as  adequate  or  reasonable,  but 
rather  an  amount  paid  to  the  government  to  aid  and  support 
the  whole  system  of  postal  service;  it  is  a  dealing  with  the 
government  whose  agencies  are  employed  to  do  the  particular 
service. 

While  the  postoffice  department  in  a  way  is  responsible  for 
the  services  and  the  property  carried,  it  cannot  be  sued  by  the 
owner  of  the  mail  package,  even  if  it  were  lost,  or  failed  to  be 
delivered,  because  it  is  a  department  of  the  government  that 
is  encased  in  the  service  and  cannot  be  sued  without  its  con- 
sent.  It  is  the  government  itself  that  undertakes  the  carrying 
of  the  mail  through  its  agents  and  servants,  and  any  miscon- 
duct or  failure  of  performance  of  duty  on  its  part  must  be  cor- 

359 


g  3S9.]  POSTAL    SEEVICE.  [PAKT    IV. 

rected  by  an  investigation  of  that  department  carried  on  by 
the  government  or  its  representatives. 

§  389.  Postmasters. —  Postmasters,  their  assistants  and 
clerks,  appointed  and  sworn  as  required  by  law,  are  public  of- 
ficers through  whom  the  service  of  receiving  and  forwarding 
the  mails  is  more  directly  carried  on;  for  any  dereliction  in 
duty  they  are  responsible  to  the  government,  and  liable  upon 
their  bonds  executed  as  required  by  the  postal  laws.  But  while 
they  are  under  this  direct  liability  to  the  general  government, 
there  is  no  doubt  a  liability  to  the  individual  who  sends,  or  is 
entitled  to  receive,  mail  through  the  particular  oflBce  over 
which  these  officers  are  installed.  The}^  owe  to  the  public  and 
to  the  government  a  duty  to  use  at  least  ordinary  diligence  in 
receiving  and  forwarding  or  properly  delivering  the  mail. 
The  great  importance  of  the  business  with  which  they  are  in- 
trusted enhances  that  duty;  through  these  officers,  as  is  well 
known  and  understood,  are  sent  not  only  important  communi- 
cations requiring  care  and  diligence  in  their  protection  and 
proper  delivery,  but  often  property  and  money  of  consid- 
erable amount' and  value.  Every  person's  mail  is  sacred  to 
him,  and  he  is  entitled  to  its  first  possession  and  perusal.  This 
right  and  individual  privilege  is  vouchsafed  to  him  by  the  con- 
stitution and  statutes  of  the  United  States,  and  so  the  general 
department  of  government  cannot  be  held  liable  for  the  reasons 
mentioned.  Whenever  the  loss,  or  breach  of  duty  resulting  in 
loss,  can  be  traced  to  one  of  these  officers  of  the  department, 
the  postmaster,  his  assistants  or  clerks  commissioned  by  the 
government,  or  to  their  servants  or  agents,  the  individual  of- 
ficer guilt}'^  of  the  negligence  or  breach  of  duty  may  be  held 
liable  for  the  damages  resulting  therefrom.  In  Keenan  v. 
Southwortk^  Mr.  Justice  Grey,  in  rendering  the  opinion,  said: 
"  The  law  is  well  settled  in  England  and  America  that  the  post- 
master-general, the  deputy  postmaster,  his  assistants  and  clerks 
appointed  and  sworn  as  required  by  law,  are  public  officers, 
each  of  whom  is  responsible  for  his  own  negligence  only,  and 
not  for  that  of  any  of  the  others,  although  selected  by  him  and 
subject  to  his  rules." 

1110  Mass.  474,  14  Am.  Rep.  613;    243;  Schuler  V.  Lynch,  8  Watts  (Pa.), 
Lane  v.  Cotton,  1   Ld.   Raym.  646;    453. 
Dunlop  V.  Monroe,  7  Cranch  (U.  S.)- 

360 


X!H.  I.]  POSTAL    SERVICE.  [§  390. 

§  390.  L'ability. —  From  what  has  already  been  said 

it  will  be  noticed  that  the  liability  of  the  postmaster,  whenever 
be  can  be  held  liable  for  the  loss  of  mail  or  mail  matter,  must 
rest  entirely  upon  his  individual  negligence,  and  the  recovery 
is  had  upon  the  implied  contract  upon  his  part  to  perform  his 
duty  with  at  least  ordinary  diligence.  But  it  has  been  held 
that  the  plaintiff  in  order  to  recover  is  not  bound  to  prove 
some  particular  act  of  negligence  in  relation  to  the  letter  or 
the  package,  and  that  the  loss  was  the  direct  consequence  of 
that  particular  negligence,  but  that  any  general  proof  of  neg- 
ligence tending  to  show  that  the  loss  was  occasioned  thereby, 
which  satisfies  the  jury  that  it  was  so  occasioned,  is  sufficient 
to  sustain  the  issue  for  the  plaintiff.^ 

In  Schroyer  v.  Lynch''-  the  court  say:  "Deputy  postmasters 
have  nothing  to  do  with  the  carr3nng  of  the  mail  by  means 
of  which  letters,  packets,  etc.,  are  conveyed  and  transmitted 
throughout  the  Union.  .  .  .  And  seeing  he  has  neither  the 
appointment  nor  the  control  of  those  who  do  carry  the  mail,  it 
would  seem,  therefore,  impossible  that  he  should  be  made  liable 
as  a  common  carrier,  or  for  any  losses  or  injuries  saving  those 
arising  from  ordinary  neglect  on  his  part.  Ordinary  neglect, 
when  he  has  no  assistant  to  attend  to  and  perform  the  duties 
of  the  office,  may  consist  in  his  not  attending  to  the  perform- 
ance of  the  same  himself  in  person  with  reasonable  vigilance 
and  care;  or,  where  he  has  assistants  and  in  his  not  exercising 
that  care  and  diligence  towards  them  in  the  performance  of  the 
duties  assigned  to  them,  which  every  person  of  common  pru- 
dence and  capable  of  governing  a  family  takes  of  his  own  con- 
cerns; and  for  every  loss  occasioned  by  the  negligence  of  the 
deputy  postmaster  in  this  respect,  I  apprehend  that  he  would 
be  held  responsible  though  the  loss  should  be  produced  imme- 
diately by  an  accident,  or  a  force  that  could  not  be  avoided  or 
resisted.  Beyond  this,  however,  as  I  conceive,  the  responsibil- 
ity of  a  deputy  postmaster  does  not  extend." 

In  considering  and  summing  up  the  English  authorities  upon 
this  subject,  the  court  further  say:  "The  ground  of  these  de- 
cisions seems  to  be  that  the  postoffice  establishment  is  to  be 
■considered  as  an  engine  of  the  government  created  by  act  of 

1  Christie  v.  Smith,  23  Vt.  6G3;  Dan-        2  §  Watts  (Pa.),  453. 
forth  V.  Grant,  14  Vt.  283. 

361 


§  301.]  posTOFFicE  depaktmp:nt.  [part  iv^ 

parliament  for  the  purpose  of  revenue  and  police,  and  that  the 
persons  employed  therein,  being  appointed  to  that  end  by  the 
government,  have  no  contracts  with  individuals  interested  in 
their  services,  either  express  or  implied,  which  would  render 
them  liable  to  the  latter  for  losses  occasioned  by  the  negligenc© 
of  others,  or  for  any  losses  sustained  other  than  those  arising^ 
from  their  own  default  or  neglect  of  duty ;  but  for  losses  of 
this  latter  description  it  is  clearly  settled  that  each  postmaster 
is  liable  for  his  own  neglect  or  delmquency."^ 

In  Dunlap  v.  Monroe''-  it  was  held  that,  in  order  to  make  a 
postmaster  liable  for  negligence,  it  must  appear  that  the  loss, 
or  injury  sustained  by  the  plaintiff  was  the  consequence  of 
the  neo^lio-ence,  and  that  in  order  to  make  out  such  neglio^ence 
it  is  competent  to  give  in  evidence  the  negligence  of  his  as- 
sistant. 

§  391.  Carriers  of  mail. —  Persons  carrying  the  mail 

upon  contract  or  appointment  are  employed  by  the  depart- 
ment of  the  government  having  supervision  of  the  mails,  and 
are  answerable  to  the  postoffice  department  for  any  breach  of 
duty  of  which  they  may  be  guilty,  upon  their  bond,  which  in 
general  must  be  given  and  which  recites  their  duties;  but  out- 
side of  this  liability  to  this  department  of  the  general  govern- 
ment is  the  same  liability  to  the  public  and  the  individual  that 
has  been  mentioned  and  discussed  in  what  has  been  said  of  post- 
masters. The  mail  carrier  may  be  made  liable  to  the  individ- 
ual for  the  loss  of  letters  or  packages  whenever  it  can  be  proven 
that  the  loss  was  the  result  of  his  negligence.  Like  a  post- 
master he  is  bound  to  exercise  at  least  ordinary  care  in  pre- 
serving and  carrying  the  mail  that  is  intrusted  to  his  care  and 
keeping.' 

1  Browning  v.  Goodchild,  3  Wils.  a  common  cari'ier  nor  a  private  car- 

443;  Stock  v.  Harris,  3  Wils.  449,  450;  rier,  and  is  not  liable  to  the  owner  for 

Whitfield  V.  La  Dispencer,  Cowp.  765;  money  stolen  from  the  mails  by  his- 

2  Kent's  Com.  610;  Story  on  Bailm.,  subordinates;    and    his    promissory 

302.  note  given  therefor  is  without  liabil- 

27  Cranch  (U.  S.),  242.  ity  as  between  the  parties.     Foster  v. 

3  One  who  contracts  to  carry  the  Metts,  55  Miss.  77,  30  Am.  Rep.  504.. 
mails  for  the  government  is  neither 

363 


PAET  FIFTH 


CARRIERS 


CHAPTER  I. 

CARRIERS  —  GENERALLY. 


392.  Definition. 

393.  As  to  the  history  of  carriers. 

394.  The  importance  and  scope  of 

the  subject. 

395.  Carriers  strictly  a  bailment  re- 

lation. 

396.  Carriers  are  of  two  kinds. 

397.  Private  or  special  carriers. 

398.  Duties  and  liabilities  of  pri- 

vate and  special  carriers. 

399.  The  carriage  of  goods,  or  prop- 

erty, or  passengers  for  re- 
ward. 


§  400.  Increasing  or  diminishing  lia- 
bility by  contract. 

401.  Can  he  diminish  liability, 

402.  When  excused  from  liability 

if  no  contract. 

403.  Compensation  and  lien  of  the 

private  carrier. 

404.  Lien. 

405.  Special    or    private    carriers 

without    hire  —  Gratuitous 
service. 


§  392.  Definition. —  A  carrier  is  defined  to  be  one  who  un- 
dertakes to  transport  persons  or  property  from  place  to  place 
either  with  or  without  reward. 

§  393.  As  to  the  history  of  carriers. —  It  would  no  doubt 
be  interesting  and  perhaps  profitable  to  trace  the  history  of  car- 
riers from  their  small  beginnings  through  the  earlier  and  inter- 
esting years  of  their  growth;  from  the  time  when  the  business, 
mainly  consisted  in  transporting  packages  and  light  freight  by 
pack  animals  and  lumbering  vehicles  drawn  by  cattle  or  slow 
coach  teams;  the  coming  into  use  of  the  early  coach  conveying 
passengers,  baggage  and  freight  to  and  from  the  great  metropo- 
lis and  other  points,  and  notice  the  favor  into  which  the  busi- 
ness grew;  to  consider  the  history  of  transportation  by  water, 
and  the  development  of  that  great  trade  which  has  united  with 
inseparable  bonds  the  interests  of  continents,  kingdoms  and 
republics,  and  in  a  measure  furnishing  thein  their  means  of  de- 

3G3 


§§  394,  395.]  CAREIEKS.  [PAKT   V. 

fense;  tbe  introduction  into  our  own  country  of  the  more 
advanced  systems  of  transportation  by  steamboats  and  rail- 
roads, until  the  magnitude  of  the  business  embraced  in  the 
carrier  trade  is  almost  beyond  comprehension;  but  we  are  not 
able  to  do  so  at  this  time,  nor  is  it  the  object  of  this  treatise; 
we  can  only  call  attention  to  it  by  way  of  introduction. 

§394.  The  importance  and  scope  of  the  subject. —  There 
is  no  business  carried  on  by  men  of  these  days  that  does  not 
touch  upon  and  involve  more  or  less  the  subject  of  carriers. 
The  rumbling  wheels  of  trucks,  express  wagons  and  omnibus 
lines  through  the  streets  of  our  great  cities,  the  immense  docks, 
elevators  and  freight  depots  within  our  seashore  towns,  the 
ports  of  our  great  lakes  piled  high  with  freight,  goods  of  all 
descriptions  and  kinds,  the  palatial  steamers  transporting  thou- 
sands of  passengers,  all  but  speak  to  us  of  the  immensity  of  the 
carrier  trade;  for  out  from  these  ports  go  the  great  trunk  lines 
of  railroads  pushing  their  way  into  the  great  cities  augmenting 
their  business;  into  the  smaller  towns  increasing  their  market 
facilities;  across  the  rich  farms  and  prairies;  through  the  rock- 
bound  ridges  of  the  great  mountain  ranges,  and  beyond  to  the 
coast  of  oceans,  almost  as  a  thing  of  life;  holding  within  their 
grasp  the  business  destiny  of  nations;  conveying  the  products 
of  a  continent  from  the  farthest  northern  boundaries  to  the 
most  extreme  southern  point;  from  the  far  east  to  the  far  west; 
from  every  business  point  to  the  great  markets  of  the  world. 

With  the  electric  telegraph  spark  we  speak,  and  the  producer 
of  the  west,  by  these  carrier  routes,  hands  his  product  of  farm 
and  mine  and  manufactory  to  the  producer  and  consumer  of 
the  east,  and  he  in  turn  on  through  wave  and  storm  of  ocean 
to  the  markets  and  consumers  of  the  old  world.  Kor  do  steam- 
ships and  vessels  and  railroads  compass  entirely  the  carrier 
trade.  Added  to  these  are  the  tens  of  thousands  of  smaller 
carriers,  transfer  lines,  expressmen,  truckmen,  even  down  to 
the  little  fellow  dressed  in  uniform  and  cap  who  delivers  pack- 
ages from  house  to  house.  Who  can  define  and  comprehend 
the  scope  and  importance  of  our  subject? 

§  395.  Carriers  strictly  a  bailment  relation. —  The  carriage 
of  freight  and  baggage  may  be  said  to  be  strictly  a  bailment 
relation  and  belongs  generally  to  the  mutual-benefit  bailments, 
though  there  may  be  gratuitous  carrying  of  goods,  or  such  a 

'3U 


CH.  I.]  CAREIERS GENEEALLT.  [§§  396,  397. 

contract  relation  as  will  classify  the  business  with  almost  any  of 
the  several  kinds  of  bailments.  The  goods  to  be  carried  are 
generally  put  into>  the  exclusive  custody  and  control  of  the 
carrier  by  the  owner,  or  shipper,  while  being  carried  to  their 
destination  and  until  delivered  to  the  consignee.  \Pt^>^^ 

§  3D6.  Carriers  are  of  two  kindvS. —  Carriers  may  be  said  to 
be  of  two  kinds:  (1)  Private  or  special  carriers,  and  (2)  public 
or  common  carriers;  and  these  two  classes  may  be  said  to  be 
again  classified  as  carriers  by  land  and  carriers  by  water.  The 
most  important  division,  however,  is  that  of  private  or  special, 
and  public  or  common  carriers.  This  subdivision  becomes  im- 
portant by  way  of  fixing  the  liability  and  duty  of  the  car- 
rier, whether  the  relation  belongs  to  the  exceptional  bailment 
to  which  attaches  the  exceptional  or  extraordinary  liability, 
or  to  that  class  of  carriers  which  are  simply  bailees  of  the 
property  or  goods  carried. 

§397.  (1)  Private  or  special  carriers. —  This  class  of  car- 
riers is  just  what  the  name  imports  —  private  or  special  carriers. 
A  private  or  special  carrier  may  be  said  to  be  one  who  agrees  to 
transport  goods,  property  or  persons  by  special  agreement  or 
contract  from  place  to  place,  either  for  hire  or  gratuitously. 
As,  for  example,  the  owner  of  a  team  and  wagon,  in  the  small 
town  away  from  the  railroad,  contracts  with  the  merchant  of 
his  village  to  haul  his  goods  upon  a  particular  occasion  from 
the  neio'hborino'  railroad  town,  for  which  he  is  to  receive 
a  consideration;  the  farmer  agrees  to  carry  his  neighbor's 
wheat  from  his  farm  to  the  market  town,  for  which  he 
is  to  receive  a  compensation,  or  gratuitously  renders  the 
service;  the  friend  or  neighbor  who  is  going  upon  a  journey 
to  a  neighboring  city,  for  the  accommodation  of  his  friend 
carries  to  the  creditor  of  his  friend  an  amount  of  money  which 
he  agrees  to  pay  upon  his  indebtedness,  and  to  return  to  him 
a  receipt  therefor,  this  being  done  either  gratuitously  or  for  a 
compensation.  Other  examples  will  occur  to  the  reader.  It 
is  the  performing  of  the  service  of  carrying  the  goods  or  the 
property,  or  even  the  carrying  of  the  person  upon  the  special 
occasion,  and  not  the  carriage  of  goods  or  property  or  persons 
by  one  holding  himself  out  to  the  public  as  being  engaged  in 
that  business  for  hire.    The  distinction  between  the  private  or 

365 


§§  398,  399.]  CAERiEEs.  ,         [part  v. 

special  carrier  and  the  public  or  common  carrier  will  be  more 
clearly  observed  hereafter. 

This  class  of  carriers  does  not  belong  to  the  exceptional  bail- 
ment class.  They  are  not  bound  to  receive  and  carry  the  goods 
of  all  who  apply  to  them  to  do  that  service,  but  they  may  se- 
lect their  customers,  fix  their  compensation,  and  the  time  the 
service  is  to  be  performed.  They  are  in  this  respect,  as  will 
be  noticed,  somewhat  analogous  to  boarding-house  keepers; 
they  are  in  no  sense  public  servants,  but  are  engaged  in  a  pri- 
vate business.  Should  they  desire  to  do  so,  however,  there  is 
no  doubt  but  that  the  private  or  special  carrier  could  by  con- 
tract assume  and  become  liable  to  perform  the  duties  of  a 
common  or  public  carrier,  and  in  such  case  the  extraordinary 
liability  would  attach  to  him. 

§  39S.  Duties  and  liabilities  of  private  and  special  carriers. 
The  consideration  of  the  question  of  the  duties  and  liabilities 
of  the  special  or  private  carrier  suggests  a  further  classifica- 
tion, namely,  (1)  private  or  special  carriers  for  hire  or  reward, 
(2)  private  or  special  carriers  without  hire  —  gratuitous  serv- 
ice. 

I. 

§  399.  The  carriage  of  goods,  or  property,  or  passengers 
for  reward. —  The  private  or  special  carrier  who  carries  goods, 
property  or  passengers  for  hire  or  reward  belongs  not  to  the 
class  of  carriers,  as  we  shall  see,  known  as  common  or  public 
carriers,  but  to  that  class  which  has  been  designated  as  bailees 
for  hire,  and  to  that  class  of  bailments  known  as  mutual-bene- 
fit bailments.  It  perhaps  approximates  to  the  classification 
already  discussed  among  the  locatio  bailments — "work  and 
labor  upon  the  thing."  The  liability,  therefore,  would  be  the 
ordinary  liability  that  applies  where  the  bailment  is  for  the 
benefit  of  both  parties;  in  other  words,  the  private  or  special 
carrier  is  bound  to  exercise  ordinary  diligence  in  carrying 
the  goods  and  delivering  them  to  the  consignee,  and  is  liable 
for  ordinary  negligence.  As  a  private  carrier  it  has  been  said 
he  is  "  bound  to  use  ordinary  care  and  diligence  such  as  a  rea- 
sonably prudent  man  would  exercise  in  the  conduct  of  his  own 
business,  or  in  the  preservation  of  his  own  property."  ^ 

1  United  States  v.  Power,  6  Mont.  271. 
366 


€H.  I.]  CARRIERS GENERALLY.  [§400. 

In  Samms  V.  Steivart'^  it  is  said:  "The  general  rule  in  ref- 
erence  to  a  bailee  for  hire  —  that  he  is  only  answerable  for  the 
loss  of  the  goods  where  he  has  been  wanting  in  ordinary  care 
and  diligence  —  is  in  most  cases  a  reasonable  and  just  one,  and 
is  only  departed  from  in  the  case  of  a  common  carrier  on  ac- 
count of  the  peculiar  relation  that  he  has  assumed  to  the  com- 
munity. Now  we  see  no  reason  why  the  law  applicable  to  a 
common  carrier  should  be  applied  to  a  farmer  who  makes  a 
personal  application  to  a  merchant  for  a  load  of  goods,  on  his 
return  trip  from  market.  The  merchant  has  it  in  his  power  to 
make  such  special  bargain  as  he  chooses,  as  to  what  shall  be 
the  liability  of  the  farmer  in  case  the  goods  are  lost.  The 
farmer  has  assumed  no  character  to  the  community  entitling 
him  to  peculiar  confidence,  and  the  merchant  is  left,  as  in  or- 
dinary cases,  to  an  inquiry  as  to  his  character  and  qualifica- 
tions. jS^or  do  we  suppose  it  would  make  any  difference  how 
many  applications  of  this  kind  had  been  made  by  the  party 
thus  carrying,  or  to  how  many  different  persons  they  may 
have  been  made  —  they  would  still  remain  so  many  special  and 
individual  transactions."  The  court  in  that  case  held  that  a 
person  occasionally  carrying  goods  or  property  may  be  re- 
sponsible in  case  of  loss  only  as  an  ordinary  bailee  for  hire,  and 
to  excuse  him  from  liability  he  need  only  show  that  he  has 
used  ordinary  care  and  diligence. 

§  400.  Increasing  or  diniinisliing  liability  by  contract. — 
The  private  carrier  may  by  contract  increase  his  liability  even 
to  the  extent  of  that  of  a  common  carrier,  but  the  increasing 
of  liability  for  loss  of  or  injury  to  the  goods  carried  to  the  extent 
of  that  of  an  insurer  of  the  property,  or  that  of  a  common  car- 
rier, will  not  make  him  a  common  carrier  or  change  his  rela- 
tions to  the  public.  .  To  do  this  he  would  take  upon  himself  all 
the  duties  as  to  receiving  goods  and  carrying  the  same  as  well 
as  the  extraordinary  liability;  in  fact  he  would  entirely  lose 
his  identity  as  a  private  carrier  and  become  a  common  or  pub- 
lic carrier.     For  example,  the  private  carrier  may  by  contract 

120  Ohio,   70-73;    Story    on   Bail-  ship,  the  owner  having  no  right  to 

ments,   sec.  399;  White   v.  Bascom,  take  goods  for  any  other  person,  the 

28   Vt.   268.     In   Lamb  v.  Parkman  owner  is  not  a  common  carrier,  but 

(Dist.  Mass.),  1  Spr.  343,  it  was  held  a  bailee  to  transport  for  hire,  and  as 

that  under  a  charter-party  giving  to  such  is  bound  for  ordinary  care, 
the  hirer  the  whole  capacity  of  tlie 

367 


§§  401-403.]  CAERIERS.  [PAET   V^ 

warrant  the  delivery  of  goorls  intrusted  to  him  for  carriage, 
and  thus  take  upon  himself  the  extraordinary  liability  rather 
than  that  of  a  bailee  of  whom  is  required  but  ordinary  dili- 
gence. 

§  401.  Can  he  diminisli  liability. —  There  seems  to 

be  no  doubt  that  a  common  carrier  may  also,  by  contract, 
diminish  his  liability;  but  the  rule  applies  to  him  as  to  other 
bailees  —  he  cannot  by  contract  excuse  himself  for  fraud  or 
for  gross  neffliffence.  The  rule  is  somewhat  different  in  the 
case  of  a  private  carrier,  and  it  may  be  said  that  where  fraud 
or  public  policy  is  not  involved,  the  private  carrier  could  con- 
tract that  he  shall  not  be  liable  for  any  loss  or  injury;  but  this 
can  only  be  in  cases  where  the  whole  matter  is  free  from  fraud, 
or,  in  other  words,  it  must  be  a  good-faith  contract.  For  ex- 
ample, a  merchant  hires  a  farmer  to  haul  his  goods  from  the 
railroad  to  his  country  store;  the  farmer  may  agree  to  haul 
them,  but  may  stipulate  that  he  will  not  be  responsible  for  any 
damage  that  may  result  to  them  from  whatever  cause  the  dam- 
age may  come  —  as  by  the  breaking  down  of  his  vehicle,  or  for 
any  other  reason;  but  if  his  contract  should  be  that  he  would 
not  be  liable  for  loss  by  theft,  and  he  himself  should  steal  the 
property,  or  if  he  should  have  an  alliance  with  others  who  did, 
in  such  case  he  would  be  held  for  the  value  of  the  property. 
So  the  matter  rests  entirely  upon  the  question  of  good  faith 
and  public  policy. 

§402.  When  excused  from  liability  if  no  contract. —  A 
private  carrier,  being  much  like  a  bailee  of  the  class  known 
as  locatio  bailees, —  bailees  who  undertake  to  do  something 
upon  the  thing  bailed, —  the  law  seems  to  hold  them  to  the 
same  liability;  they  are  excused  from  liability  where  the  loss 
or  injur}^  occurs  by  reason  of  the  act  of  God,  the  public  enemy, 
or  inevitable  accident,  as  for  accidental  fire,  or  for  loss  by  rob- 
bery, or  burglary,  or  larceny;  but  in  all  these  cases,  as  in  cases 
already  discussed,  the  carrier  must  be  able  to  prove  that  in  the 
exercise  of  ordinary  diligence  the  loss  could  not  have  been 
avoided.  He  must  not  expose  the  property  to  any  of  these 
dangers  if  by  ordinary  diligence  he  can  avoid  it. 

§  403.  Compensation  and  lien  of  the  private  carrier. — 
The  private  carrier  may  regulate  his  compensation  and  charges 
by  contract  for  the  carrying  of  the  goods;  but  if  he  does  not 

368 


CH.  I.]  CARRIERS GENERALLY.  [§  40i. 

do  SO,  and  there  is  no  stipulation  as  to  compensation,  be  is  en- 
titled to  a  reasonable  compensation,  to  be  determined  from  all 
of  the  facts,  and  to  be  proven  by  the  testimony  of  competent 
witnesses  as  to  what  such  service  under  just  such  circumstances 
would  be  reasonably  worth. 

§  -401.  Lien. —  It  would  seem  from  the  weight  of  author- 
ity that  the  private  carrier  has.no  right  to  a  common-law  lien 
upon  the  goods  carried  for  his  compensation.  Manj'  of  the 
writers  upon  this  subject  urge  that  there  is  no  reason  why  he 
should  not  have  such  a  lien,  and  that  reasoning  by  analogy  he 
certainly  should  have  one.  It  is  argued  that  the  same  reasons 
exist,  for  example,  that  obtain  in  the  case  of  the  warehouseman, 
and  some  have  urged  that  the  same  reason  obtains  as  in  the 
case  of  a  bailee  who  benefits  the  property  by  his  service  and 
materials. 

In  Hutchinson  on  Carriers  it  is  said :  "  It  seems  not  to  be 
well  settled  whether  a  private  carrier  for  hire  has  a  lien  upon 
the  goods  in  respect  to  which  he  performs  the  service  or  not. 
There  would  seem  to  be  no  satisfactory  reason  why  he  should 
not  have  the  same  right  to  retain  the  goods  until  his  charges 
for  their  carriage  are  paid;  as  the  warehouseman,  the  wharf- 
inger or  the  artisan  who  by  his  labor  and  skill  has  added  to 
their  value.  The  general  rule  is,  where  a  bailee  of  a  chattel 
has  increased  its  value  by  his  labor,  he  has  a  specific  lien  upon 
it  for  his  compensation,  which  means  no  more  than  the  right  to 
retain  it  until  his  charges  for  the  particuhir  services  are  paid, 
but  not  for  a  general  balance  of  account."^  Jones  on  Liens 
states  the  rule  to  be  that  the  private  carrier  has  no  lien  for  his 
services  unless  he  specially  reserves  it  by  agreement,  but  urges 
that  there  seems  to  be  no  reason  why  he  should  not  have  such 
lien.^  It  would  seem,  however,  to  be  somewhat  questionable 
whether  the  criticisms  made  by  these  authors  are  based  upon 
sound  reasoning.  The  lien  given  to  the  artisan  who  performs 
labor  upon  the  property  and  adds  material  by  way  of  mak- 
ing repairs    is  given    upon  the  theor}^  that  he  has  bettered 

1  Hutchinson,  Carriers,  sec.  40.  sion  say:  "Tiie  compensation  of  the 

2  Jones  on  Liens,  sec.  276;  Biddle,  common  carrier  is  assured  to  him  by- 
Dean  &  Co.  V.  N.  Y..  L.  E.  &  W.  K.  alien  upon  the  goods  — aright  whicii 
Co.,  1  Int.  Com.  594-604.  In  this  case  is  not  enjoyed  by  a  common  carrier." 
the    Interstate  Commerce  Commis- 

24  369 


§  -JrOi.]  CARRIERS.  [part    V. 

the  property.  The  innkeeper  and  common  carrier  are  recog- 
nized as  being  entitled  to  a  lien  because  they  are  in  a  measure 
public  servants,  and  bound  to  perform  services  and  furnish 
entertainment  for  all  who  apply.  And  it  is  upon  this  theory 
that  their  lien  is  given.  ISTo  such  reason  can  be  said  to  exist 
in  the  case  of  the  private  carrier;  his  relation  is  one  created 
entirely  by  a  contract  of  his  own  making  in  each  particular  in- 
stance. He  can  make  the  contract  and  enter  upon  the  service, 
or  he  may  refuse,  as  he  pleases ;  he  may  perform  service  to-day, 
or  this  week,  or  next  week,  or  next  month,  as  he  pleases,  regu- 
lating all  by  the  particular  contract.  He  may  give  credit  for 
the  services  he  performs,  or  he  may  demand  his  payment 
in  advance,  as  he  pleases.  If  the  person  who  employs  him,  in 
his  judgment,  is  one  who  is  liable  not  to  compensate  him,  he 
can  provide  for  securing  his  compensation  by  the  contract  which 
he  makes  for  the  carriage  of  the  goods.  But  it  is  urged  that 
certainly  the  warehouseman  should  be  no  more  entitled  to  a 
lien  for  compensation  than  the  private  carrier;  that  he  is  not 
bound  to  receive  and  store  and  care  for  the  goods  of  all  who 
may  apply,  and  that  the  storing  of  tlie  property  can  hardly 
be  said  to  add  benefit  to  it,  as  in  case  of  the  artisan.  While 
this  is  true,  and  while  perhaps  there  can  be  no  more  reason 
w^hy  the  warehouseman  should  have  a  lien  than  that  the  private 
carrier  should  be  secured  by  lien,  yet  it  seems  that  there  is 
quite  a  difference  in  the  relation  between  a  private  carrier  and 
a  warehouseman;  certainly  the  warehouseman  is  dealing  more 
largely  with  the  public.  Whereas  the  law  may  not  compel  him 
to  receive  the  goods  of  all  who  apply  and  store  them  and  care 
for  them,  he  nevertheless,  as  a  general  rule,  advertises  and 
asks  patronage  from  the  whole  public.  He  builds  immense 
warehouses,  and  invites  all  who  have  goods  to  store,  or  grain 
to  put  in  the  elevators,  to  bring  it  to  his  warehouse.  He  is  thus 
dealing  with  the  public  —  dealing  with  those  who  apply;  and 
it  seems  to  have  been  on  this  account  that  his  right  to  a  lien 
for  compensation  is  recognized.  It  would  seem  that  there  is  a 
difference  between  such  cases  and  cases  where  one  seeks  out 
the  individual  and  makes  with  him  a  private  contract,  which 
may  vary  as  circumstances  vary,  as  to  price,  as  to  the  manner 
of  performing  the  contract,  as  to  the  time  when  it  shall  be  per- 
formed ;  and  so  it  would  appear  that  the  same  reason  does  not 

370 


CH.  I.]  OAERIEES  —  GENERALLY,  [§405. 

exist  in  the  case  of  the  private  carrier  that  exists  even  in  the 
case  of  the  warehouseman  for  the  giving  of  security  for  serv- 
ices by  a  lien  upon  the  property. 

11. 
§  405.  Special  or  private  carriers  without  hire  —  Gratu- 
itous service. —  Where  the  carrying  of  the  goods  is  gratuitous, 
the  carrier  being  a  bailee  of  the  property  intrusted  to  him,  it 
wrould  seem  that  the  same  rules  as  to  liability  must  attach  that 
obtain  in  the  case  of  bailments  for  the  sole  benefit  of  the  bailor  — ■ 
be  would  be  held  liable  for  gross  negligence  and  required  to 
exercise  only  slight  diligence.  What  is  gross  negligence  or 
slight  diligence  can  only  be  determined  by  the  circumstances 
of  each  particular  case.  No  general  or  fixed  definition,  as  we 
have  seen,  can  be  laid  down;  what  would  be  ordinary  dili- 
gence in  one  case  might  be  gross  negligence  in  another.  The 
examples  of  special  or  private  carriers  without  hire  are  numer- 
ous, and  no  doubt  the  mere  suggestion  brings  to  mind  very 
many  examples.  A  farmer  who,  for  the  accommodation  of  his 
neighbor,  takes  into  his  wagon,  while  going  to  the  market  town, 
bags  of  wheat  to  be  left  at  the  mill  to  be  ground,  or  on  return- 
ing, without  compensation  but  for  mere  accommodation,  brings 
for  the  miller  flour  which  is  to  be  delivered  to  the  neighboring 
farmer;  or  where  the  neighbor  who  is  traveling  to  some 
other  city  carries,  without  recompense,  bonds  to  be  delivered 
to  a  broker  to  be  sold,  or  money  to  be  paid  upon  his  neighbor's 
debts,  or  any  such  like  service  of  carrying  goods  or  property, 
or  money,  or  bonds,  simply  for  accommodation, —  in  such  cases 
there  is  no  compensation;  the  sole  benefit  to  be  derived  is  de- 
rived by  the  bailor  —  the  one  who  intrusts  the  property  to  the 
gratuitous  carrier.  If  he  receives  compensation,  as  we  have 
seen,  be  must  exercise  ordinary  diligence,  but  if  he  receives 
no  compensation  he  is  not  held  to  so  high  a  degree  as  ordinary 
diligence.^ 

1  Pender  v.  Robins,  6  Jones  L.  (N.  that  under  such  circumstances  the 

C.)  207.     The  captain  of  a  vessel  re-  captain  was  liable  only  for  gross  neg- 

ceived    watches   which   he    was   to  ligence.     Colyar   v.  Taylor,  1  Cold, 

carry  for  the  owner  and  deliver  gra-  (Tenn.)  372,  where  it  was  held  that 

tuitously.     He  put  them  in  his  chest  defendant  was  guilty  of  gross  negli- 

in  the  cabin  he  occupied,  and  while  geiice   and   liable.     Fay  v.  Steamer 

he  was  asleep  thieves  broke  in  and  New  World,  1  Cal.  348. 
stole  the  watches.     The  court  held 

371 


CHAPTER  11. 


PUBLIC  OR  COMMON  CAERIERS. 


406.  Definition. 

407.  First    essential     requisite  — 

Tlie  important   and  distin- 
guishing essentials. 

408.  Second  essential  requisite  — 

Determinate  of  the  relation. 

409.  The  true  test. 

410.  May  limit  the  employment  to 

certain  kinds  of  propei"ty. 

411.  Third     essential    requisite  — 

Carriage  must  be  for  hire. 

412.  Carriers  by  water  as  well  as 

by  land. 
41-3.  Who  are  common  carriers. 

414.  Tugs  and  tow-boats 

415.  Contrary  holdings. 


§  416.  Ferry-boatsr 

417.  Carriers  by  land. 

418.  Hackmen  and  omnibus  men. 

419.  Truckmen,  cartmen  and 

ownei's  of  wagons. 

420.  Street-car  companies. 

421.  Express  companies. 

432.  Fast-freight    lines,   dis- 
patch companies,  etc. 

423.  Transfer  companies. 

424.  Railroad  companies. 

425.  Recei%'ers  and  trustees. 

426.  Not  all  railroad  compa- 
nies common  carriers. 

427.  Who    are  not  common    car- 

riers. 


§406.  Definition, —  The  definition  generally  conceded  to 
be  correct  and  more  often  adopted  than  any  other  is  that  of 
Chief  Justice  Parker  in  the  case  of  Dwight  v.  Brewster:  ^  "  A 
common  carrier  is  one  who  undertakes  for  hire  or  reward  to 
transport  the  goods  of  such  as  choose  to  employ  him  from 
place  to  place."  This  definition  is  somewhat  enlarged  by 
Judge  Cooley  in  his  work  on  Torts:  "A  common  carrier  is 
one  who  regularly  undertakes  for  hire,  either  on  land  or  on 
water,  to  carry  goods,  or  goods  and  passengers,  between  differ- 
ent places  for  such  as  may  offer."  Another  definition  that  has 
received  commendation  is  one  of  an  eminent  jurist,  as  follows: 
"  Any  man  undertaking  for  hire  to  carry  goods  of  all  persons 
indifferently."  ^  From  the  accepted  definitions  of  a  common 
carrier  it  may  be  said  that  there  are,  among  others,  three  most 
essential  requisites: 


1 1  Pick.  50;  Cooley  on  Torts,  §  638. 
Judge  Cooley  in  his  note  to  the  text 
cites  Mershon  v.  Hobensack,  22  N.  J, 
b73.  "No  person  is  a  common  car- 
rier if  not  a  carrier  for  hire."  Citing 


Citizens'  Bank  v.  Nantucket  Steam- 
boat Co.,  2  Story,  16,  and  other  cases. 
^Gisbourn  v.  Hurst,  1  Salt.  249. 
This  definition  is  said  by  Gibson,  C.  J., 
in  Gordon  v.  Hutchinson,  1  Watts  & 

r2 


CH.  II.]  PUBLIC    OR    COMMON    CARRIERS.  [§§  407,  408. 

1st.  He  must  regularly  undertake  to  carry  goods  for  all  who 
choose  to  employ  him,  or  goods  and  passengers  between  differ- 
ent places  for  such  as  may  offer. 

2d.  His  underfctiking  and  holding  himself  out  to  the  public 
as  a  carrier  must  be  such  that  in  case  of  his  refusal  to  accept 
and  carry  the  goods  in  the  regular  course  of  his  business  he 
would  be  liable  to  an  action  for  the  damages  that  might  result. 

3d,  The  carriage  of  goods  or  passengers  must  be  for  hire. 

§407.  (1)  First  essential  reiiiiisite  —  The  important  and 
distinguishing  essentials. —  The  most  important  and  distin- 
guishing essential  is,  perhaps,  the  first  one  mentioned  in  the 
above  section.  The  common  carrier  must  regularly  undertake 
to  carry  goods  for  all  who  choose  to  employ  him,  and  to 
carry  ail  passengers  who  apply  for  carriage.  It  is  this  that 
distinguishes  the  common  carrier  from  the  private  or  special 
carrier.  The  private  or  special  carrier  may,  like  the  boarding- 
house  keeper,  select  his  customers;  but  the  common  carrier, 
like  the  innkeeper,  must  serve  all  who  apply.  The  common 
carrier  is  therefore  called  a  public  carrier,  and  in  some  respects 
may  be  said  to  be  a  public  servant,  owing  to  the  public  the  per- 
formance of  certain  duties  and  taking  upon  himself  certain 
public  responsibilities.  He  cannot,  like  the  private  carrier, 
choose  his  customers  and  make  special  contracts  for  carrying 
their  goods  or  transporting  them  as  passengers ;  he  must  carry 
goods  and  passengers  at  the  regular  rate,  not  giving  to  one 
advantages  over  others.  It  is  the  holding  out  to  the  public 
by  the  carrier  that  he  is  ready  and  willing  to  carry  the  goods 
of  all  who  apply  and  pay  the  price  for  carrying  that  gives  to 
him  the  characteristics  that  distinguish  him  from  other  car- 
riers and  fixes  his  relation  as  a  common  carrier. 

§  408.  Second  essential  requisite  —  ])eterniinate  of  the  re- 
latiou. —  Determinate  of  this  relation,  therefore,  may  be  said. 

Serg.  285,  to  be  the  best  definition  of  kind  which  ho  pleases  to  carry,  and 

a  common  carrier  in  its  application  the  persons  so  applying  will  agree  to 

to    the    business    of    this    countr}'.  liave  them  carried  upon  tlie  lawful 

Hutchinson  on  Carriers,  sec.  47,  is  as  terms  prescribed  by  the  carrier,  and 

follows:    "  A  common  or  public  car-  who,  if  he  refuses  to  carry  such  goods 

rier  is  one  who  undertakes  as  a  busi-  for  those  who  are  willing  to  comply 

ness  for  hire  or  reward  to  carry  from  with  his  terms,  becomes  liable  to  an 

one  place  to  another  the  goods  of  all  action   by  the  aggrieved  party  for 

persons  who  may  apply  for  such  car-  such  refusal." 
riage,  provided  the  goods  be  of  the 

373 


§  409.]  OAERIEKS.  [part   V. 

to  be  the  fact,  not  that  he  is  engaged  in  a  public  employment, 
or  that  he  carries  goods  to  any  fixed  or  particular  place,  but 
that,  so  far  as  his  capacity  for  transporting  goods  or  passengers 
Avill  permit,  he  holds  himself  out  to  the  public  as  ready  and 
Avilling  to  carry  the  goods  of  all  persons  who  choose  to  employ 
him  and  all  passengers  who  apply.  The  relation  must  be  so 
thoroughly  defined  and  understood  that  in  case  of  a  refusal  to 
receive  and  carry  the  goods,  the  terms  of  carriage  being  com- 
plied with,  an  action  could  be  sustained  against  him  for  such 
refusal.^ 

§4:09.  The  true  test. —  Judge  Simpson, 'for  the  supreme 
court  of  South  Carolina,  said:^  "The  true  test  of  the  character 
of  a  party  as  to  the  fact  whether  he  is  a  common  carrier  or 
not  is  his  legal  duty  and  obligation  with  reference  to  trans- 
portation. Is  it  optional  with  him  whether  he  will  or  will  not 
carry?  If  it  is  his  legal  dut}^  to  carry  for  all  alike  who  com- 
ply with  the  terms  as  to  freight,  etc.,  then  he  is  a  common  car- 
rier and  subject  to  all  those  stringent  rules  which  for  wise  ends 
have  long  since  been  adopted  and  uniformly  enforced  both  in 
England  and  in  all  the  states  upon  common  carriers.  If,  on  the 
contrary,  he  may  carry  or  not  as  he  deems  best,  he  is  but  a 
private  individual,  and  is  invested  like  all  other  private  persons 
with  the  right  to  make  his  own  contracts,  and  when  made 
to  stand  upon  them.  While  the  law  has  imposed  duties  and 
heavy  responsibilities  upon  common  carriers  which  they  can- 
not avoid,  limit  or  shake  off,  yet  it  has  never  attempted  to 
hamper  and  surround  those  who  are  not  common  carriers  with 
the  stringent  rules  applicable  to  carriers,  or  to  prevent  them 
from  exercising  their  own  judgment  as  to  the  responsibilities 
which  they  are  willing  to  assume  in  a  special  case." 

1  Nugent  V.  Smith,  L.  R.  1  Com.  P.  out,  either  expressly  or  by  a  course 
Div.  27.  The  court  say:  "The  real  of  conduct,  that  he  will  carry  for 
test  of  whether  a  man  is  a  common  hire,  so  long  as  he  has  room,  the  goods 
carrier,  whether  by  land  or  water,  of  all  persons  indifferently  who  send 
therefore  really  is  whether  he  has  him  goods  to  be  carried.  If  he  does 
held  out  that  he  will,  so  long  as  he  this,  his  first  responsibility  naturally 
has  room,  carry  for  hire  the  goods  of  is  that  he  is  bound  by  a  promise  im- 
every  person  who  will  bring  goods  plied  by  law  to  carry  for  a  reason- 
to  him  to  be  carried.  The  test  is  not  able  price  the  goods  sent  to  him  upon 
whether  he  is  carrying  on  a  public  such  an  invitation." 
employment,  or  whether  he  carries  2  Piedmont  Mfg.  Co.  v.  Columbia 
to  a  fixed  place,  but  wliether  he  holds  River  Co.,  19  S.  C.  353. 

37-i 


CH.  II.]  PUBLIC   OK    COMMON   CAERIEES.  [§  410. 

§  410.  May  limit  the  employment  to  certain  kinds  of 
property. —  While  from  the  generally  accepted  definition  of  a 
common  carrier  it  might  seem  that  the  carrier  will  not  be  per- 
mitted to  limit  his  employment  as  to  the  kind  of  property 
he  will  carry,  yet  there  can  be  no  doubt  that  he  may  do  so. 
As,  for  example,  the  carrier  of  freight  and  passengers  cannot 
be  compelled  to  cany  small  packages  or  bundles,  or  money,  or 
such  kind  of  goods  as  belong  especially  to  the  express  com- 
pany's business.  Or  the  carrier  who  is  engaged  in  running  a 
ferry-boat  for  the  carriage  of  passengers  could  not  be  com- 
pelled to  carry  freight,  or  be  held  liable  for  the  carriage  of 
parcels  which  were  delivered  to  the  captain  of  the  boat  to  be 
carried  to  some  consignee.  He  has  limited  his  employment  to 
the  carriage  of  passengers  upon  his  ferry-boat,  and  he  cannot 
be  compelled  to  carry  property  which  is  not  in  the  line  of  his 
employment.  Judge  Story  says:  "To  bring  a  person  within 
the  description  of  a  common  carrier  he  must  exercise  it  as  a 
public  employment;  he  must  undertake  to  carry  goods  for  per- 
sons generally,  and  he  must  hold  himself  out  as  ready  to  en- 
gage in  the  transportation  of  goods  for  hire  as  a  business,  not 
as  a  casual  occupation  ^;r6>  liac,  vice.''''  ^  In  Citizens'  Bcuik  v. 
Steamhoat  Co.^-  Judge  Story  very  clearly  states  the  doctrine: 

1  Story  on  Bailments,  sec.  495;  Gor-  v.    Buchanan,  5  Yerg.  71;  Turney  v. 

dou  V.  Hutchinson^  1  W.  &  S.  (Pa.)  Wilson,  7  Yerg.   340.      The    ruling 

2y5;  Mershon  V.  Hovensack,  22  N.  J.  seems  to  be  rather  exceptional.    See 

Law,  377;  Verner  v.  Switzer,  32  Pa.  Hutchinson  on  Carriers,  sec.  52. 

St.  208.     In  Moss  v.  Battis,  4  Heisk.  2  Citizens'     Bank    v.     Nantucket 

(Tenn.)  6G1,  the    defendant  was   a  Steamboat  Co.,  2  Story  (U.  S.),  66; 

farmer,   and,  after  his  crops  were  Redfield's  Law  of  Railway  Carriers 

harvested,  he  ran  a  boat  for  himself  (2d  ed.),  1.     The  test  as  claimed  by 

or  any  one  else  who  would  employ  some  of  the  authors  seems  to  be,  is 

him.     He  built  a  fiat  boat  to  trans-  the  business    habitual,   not  merely 

port  to  market  a  cargo  of  his  own  casual  ?    Fish  v.  Ciiapman,  2  Ga.  345), 

staves,   but    at   the   request   of   the  46  Am.  Dec.  393;  Samms  v.  Stewart. 

])]aintilf  he  abandoned  his  intention  20  Ohio,  69.     There  are  cases,  how- 

and  loaded  his  own  boat  and  one  ever,  that  hold  tliat  the  business  need 

furnished  by  the  plaintiff  with  lum-  not  be  continual,  but  that  the  test  is 

ber,  and  undertook  to  carry  it  by  more  confined  to  his  holding  himself 

river  to  market.   The  boat  struck  an  'Out  as  ready  and  willing  to  carry 

obstruction,  was  sunk,  and  a  part  of  property  of  all  who  apply.  In  Gordon 

the  lumber  was  lost.     He  was  held  v.   Hutchinson,   1  W.  &  S.  (Pa.)  285, 

to  be  a  common   carrier.     This  has  tlie  court  decidedly  holds  that  it  is 

been  held  in  other  Tennessee  cases,  not    necessary    that    transportation 

Johnston  v.  Friar,  4  Yerg.  48;  Gordon  should  be  his  principal  business;  that 

375 


I  4iU.]  CAEKIEES.  [part    Y. 

"A  steamboat  may  be  employed,  althougb  I  presume  it  is 
rarely  the  case,  solely  in  the  transportation  of  passengers,  and 
then  the  liability  is  incurred  only  to  the  extent  of  the  common 
rio-hts,  duties  and  obligations  of  carrier  vessels  of  passengers 
by  sea,  and  carrier  vehicles  of  passengers  on  land;  or  they 
may  be  employed  solely  in  the  transportation  of  goods  and 
merchandise,  and  then,  like  other  carriers  of  the  like  character 
at  sea  and  on  land,  they  are  bound  to  the  common  duties,  ob- 
ligations and  liabilities  of  common  carriers;  or  the  employ- 
ment may  be  limited  to  the  mere  carriage  of  particular  kinds 
of  property  and  goods;  and  when  this  is  so,  and  the  fact  is 
known  and  avowed,  the  owners  will  not  be  liable  as  common 
carriers  for  any  other  goods  or  property  intrusted  to  their 
agents  without  their  consent.  The  transportation  of  passen- 
gers or  of  merchandise,  or  of  both,  does  not  necessarih'  imply 
that  the  owners  hold  themselves  out  as  common  carriers  of 
money  or  bank  bills.  It  has  never  been  imagined,  I  presume, 
that  the  owners  of  a  ferry-boat,  whose  ordinary  employment 
is  merely  to  carry  passengers  and  their  luggage,  would  be 
liable  for  the  loss  of  money  intrusted  for  carriage  to  the  boat- 
man or  other  servants  of  the  owners,  where  the  latter  had  no 
knowledge  thereof  and  received  no  compensation  therefor.  In 
like  manner  the  owners  of  stage-coaches,  whose  ordinary  em- 
ployment is  limited  to  the  transportation  of  passengers  and 
their  luggage,  would  not  be  liable  for  parcels  of  goods  or  mer- 
chandise intrusted  to  the  boatman  employed  by  them  to  be 
carried  from  one  place  to  another  on  their  route  where  the 
owners  received  no  compensation  therefor,  and  did  not  hold 
themselves  out  as  common  carriers  of  such  parcels.  A  fortiori 
they  would  not  be  liable  for  the  carriage  of  parcels  of  money 
or  bank  bills,  under  the  like  circumstances.  So,  if  money  should 
be  intrusted  to  a  common  wagoner  not  authorized  to  receive 
it  by  the  ordinary  business  of  his  emplovers  and  owners,  at 
their  risk,  I  apprehend  that  they  would  not  be  liable  for  the 
loss  thereof  as  common  carriers,  any  more  than  they  would  be 
for  an  injury  done  by  his  negligence  to  a  passenger  whom  he 

even  if  it  is  merely  an  occasional  property  of  all  who  may  apply, 
business  it  would  be  enough,  pro-  Mores  v.  Norris,  4  N.  H.  306:  Haynie 
vided, of  course,  he  holds  himself  out  v.  Baylor,  18  Tex.  498;  Farley  v. 
as  ready  and  desirous  of  carrying  the    Lavery,  54  S.  W.  840. 

376 


CH.  II.]  PUBLIC   OK    COMMON    CARRIERS.  [§  411. 

had  casually  taken  up  on  the  road.  In  all  these  cases  the 
nature  and  extent  of  the  employment  or  business  which  is  au- 
thorized by  the  owners  on  their  own  account  and  at  their  own 
risk,  and  which  either  expressly  or  impliedly  they  hold  them- 
selves out  as  undertaking,  furnishes  the  true  limits  of  their 
rights,  obligations,  duties  and  liabilities.  The  question,  there- 
fore, in  all  cases  of  this  sort  is,  what  are  the  true  nature  and 
extent  of  the  employment  and  business  in  which  the  owners 
hold  themselves  out  to  the  public  as  engaged?  They  may  un- 
dertake to  be  common  carriers  of  passengers,  and  of  goods  and 
merchandise,  and  of  money;  or  they  may  limit  their  employ- 
ment and  business  to  the  carriage  of  any  one  or  more  of  these 
particular  matters." 

§  411.  (3)  Third  essential  reriiiisite  —  Carriage  must  be  for 
hire. —  If  the  carrier  is  to  receive  no  compensation,  and  the 
service  is  gratuitous,  we  have  seen  that  the  carrier  must  of 
necessity  be  a  private  or  special  carrier,  for  in  such  case  he  is 
but  a  gratuitous  bailee.*  To  be  a  common  carrier  the  service 
must  be  for  some  reward,  no  matter  how  small  the  compensa- 
tion, or  whether  it  be  direct  or  indirect;  if  there  is  any  bene- 
fit whatever  derived  from  it  to  the  carrier,  it  is  enough  to  make 
him  a  common  carrier.  Even  a  promise  of  benefit  or  payment 
has  been  held  to  be  suificient.  In  PlerGe  v.  Railroad  Co?-  the 
action  was  to  recover  the  value  of  eight  bundles  of  bags  which 
had  been  in  use  for  two  seasons  in  transporting  grain  by  way 
of  the  river  and  defendants'  railway.  The  defendants  sought 
to  avoid  liability  as  a  common  carrier  by  showing  a  uniform 
and  long  established  custom  of  the  river  and  railway  that  the 
bags  used  in  the  transportation  of  grain  were  carried  free  of 
charge  when  empty,  and  claiming,  because  of  this,  that  it  could 
be  held  liable  only  in  case  of  gross  negligence.  The  court 
say:  "It  makes  no  difference  that  the  custom  is  described  as 
being  to  carry  the  bags  free.     In  determining  whether  they 

lln  Citizens'  Bank  v.  Nantucket  any  recompense  for  his  services.  The 
Steamboat  Co.,  2  Story  (U.  S.),  35,  known  definition  of  a  common  car- 
Judge  Story,  in  tlie  opinion,  says:  "  I  rier  in  all  our  books  fully  establishes 
take  it  to  be  exceedingly  clear  that  this  result."  Louisville,  etc.  R.  Co. 
no  person  is  a  common  carrier  in  the  v.  Gerson,  103  Ala.  409;  Kemp  v. 
sense  of  the  law  who  is  not  a  carrier  Coughtry,  11  Johns.  107. 
for  hire, —  that  is,  who  does  not  re-  ^23  Wis.  387. 
oeive  or  is  not  entitled  to  receive 

377 


^  412.]  CAKEIERS.  [part   V» 

arj  really  carried  free  or  not,  the  whole  transaction  between 
the  parties  must  be  considered,  and  when  this  is  done  it  is 
found  that  all  that  is  meant  by  saying  that  the  empty  bags  are 
carried  free  is,  that  the  customer  pays  no  other  consideration 
for  it  than  the  freight  derived  from  the  business  the}^  give  the 
company.  But  this,  as  already  seen,  is  sufficient  to  prevent 
the  transportation  of  the  bags  from  being  gratuitous.^    . 

§  412.  Carriers  by  water  as  well  as  by  land. —  Carriers  by 
water,  including  carriers  upon  the  high  seas,  where  they  carry 
goods  for  hire  and  hold  themselves  out  as  read}^  and  willing 
to  serve  all  who  come,  are  held  to  be  common  carriers  and 
subject  to  the  liabilities  that  attach  to  common  carriers.  In 
Liverpool  Steamhoat  Co.  v.  Phoenix  Co.^  Mr.  Justice  Gray,  in 
rendering  the  opinion  of  the  court,  says:  "By  the  settled  law, 
in  the  absence  of  some  valid  agreement  to  the  contrary,  the 
owner  of  a  general  ship  carrying  goods  for  hire,  whether  em- 
ployed in  internal,  in  coasting,  or  in  foreign  commerce,  is  a 
common  carrier  with  the  liability  of  an  insurer  against  all 
losses  except  onl}^  such  two  irresistible  causes  as  the  act  of  God 
and  public  enemies."  It  has  been  said,  however,  that  "if  the 
owner  of  a  ship  employs  it  on  his  own  account  generally,  or  if 
he  lets  the  tonnage  with  a  small  exception  to  a  single  person, 
and  then,  for  the  accommodation  of  a  particular  individual,  he 

iSmithv.  RailroadCo.,  24N.Y.  222;  pensation;     and    there    was  also  a 

Steamboat  New  World  v.  King,  16  clause  in  the  contract  that  "the  per- 

How.  (U.  S.)  469.     In  this  case  it  was  sons  riding  free  to  take  charge  of  the 

held  that  under  a  general  custom  of  stock  do  so  at  their  own  risk  of  per- 

steamboats  to  carry  steamboat  men  sonal  injury  from  whatever  cause. "^ 

free,  a  steamboat  man  ridmg  on  a  The  court    held,   however,   that    it 

free  ticket  was  not  to  be  regarded  as  could  not  be  considered  a  free  carry- 

a  gratuitous  passenger;  but  that  the  ing  of  the  passengers  who  had  charge 

consideration   was  to   be   found   in  of  the  stock,  and  for  any  injury  to 

those  advantages  which  induced  the  them  the  company  must  be  held  as- 

establishment  of  the  custom.   In  Bis-  common  carriers, 
sell  V.  New  York  Cent.  R.  Co.,  25  N.  Y.        2 129  xj.  S.  397,  437;  Story  on  Bail- 

442,   the   carrier  was    employed    to  ments,  sec.  501;  The  Niagara,  21  How. 

transport  certain  live  stock,  and  stip-  7,  23;  The  Lady  Pike,  21  Wall.  1,  14r 

ulated  to  carry  members  of  the  firm,  Portfield  v.  Humphreys,  8  Humph, 

the  plaintiff  or  such  other  persons  as  (Tenn.)  497;    The    Schooner   Emma 

the  firm  should  employ  to  take  charge  Johnston,  1  Sprague  (U.  S.),  527:  The^ 

of  the  stock  during  the  transit,  de-  Propeller  Commerce,  1  Black  (U.  S.), 

fendants  claimmg  that  the  carriage  582;  The  Schooner  Reeside.  2  Sumn. 

of  passengers    was    without    com-  (U.  S.)  567;  Parker  v.  Flag,  26  Me.  ISl. 

378     . 


CII.  n.]  PUBLIC    OR    COMMON    CARRIERS.       "       [§§  413,  414. 

takes  goods  on  board  for  freight  (not  receiving  tbem  for  per- 
sons in  general),  lie  will  not  be  deemed  a  common  carrier  but 
a  mere  private  carrier,  for  he  does  not  under  such  circumstances 
hold  himself  out  as  engaged  in  a  public  business  or  employ- 
ment."^ This  would  seem  at  first  blush  not  to  be  in  harmon}^ 
with  the  class  of  cases  already  quoted,  where  it  is  held  that  it 
is  not  necessary,  in  order  to  be  held  a  common  carrier,  that  the 
person  should  be  habitually  and  continually  engaged  in  the 
business  of  carrying  goods  for  hire  for  all  who  may  apply,  but 
that  if  he  carries  goods  at  particular  times  or  seasons  for  hire, 
holding  himself  out  as  ready  and  willing  to  carry  for  all,  he 
would  be  a  common  carrier.  It  will  be  noticed,  however,  that 
these  holdings  do  not  include  cases  where  goods  are  carried 
for  a  private  person,  or  for  the  accommodation  of  a  "particu- 
lar individual,"  and  that  therefore  the  holding  is  in  harmony 
with  the  cases  cited. 

§413.  Who  are  common  carriers. —  Having  thus  defined 
common  carriers  and  discussed  the  essentials,  and  determined 
that  carriers  by  water  will,  if  carrying  under  the  same  circum- 
stances, be  common  carriers  the  same  as  carriers  by  land,  we 
can  make  the  application  of  the  principles  noticed  to  carriers 
generally,  and  determine  who  are  common  or  public  carriers. 
To  name  them  all,  however,  would  be  somewhat  difficult,  for  it 
must  be  seen  that  they  embrace  a  very  large  class.  For  ex- 
ample, carriers  by  water  have  been  held  to  comprise  owners 
of  general  ships,  masters  of  steamers,  steam  vessels  engaged  in 
coasting  trade,  inland  trade,  canal  companies,  owners  of  flat 
boats  holding  themselves  out  as  ready  and  willing  to  receive 
freight  from  the  public  generally;  in  fact,  the  owners  of  almost 
any  craft,  whether  plying  upon  the  lakes,  upon  the  high  seas 
in  the  coasting  trade,  or  in  our  navigable  rivers,  are  common 
carriers  if  engaged  in  the  carriage  of  goods  for  hire  and  hold- 
ing themselves  out  to  the  public  generally  as  ready  and  will- 
ing to  carr}'-  freight  or  property  or  passengers  for  all  who  apf)ly. 

g  414.  Tugs  and  tow-boats, —  In  the  case  of  The  J.  P.  Don- 
aldson'^ the  question  discussed  by  the  court,  among  other 
things,  was  whether  a  tug-boat  engaged  in  towing  a  barge  was 

1  Story  on  Bailments,  sen.  501 ;  Nu-        ^  167  U.  S.  603. 
gent  V.  Smith,  1  C.  P.  Div.  28. 

879 


§  414.]  CAEKIEKS.  [part  'V, 

a  common  carrier  and  subject  to  the  extraordinary  liability 
that  attaches  to  such  carriers.  This  question  has  been  several 
times  before  the  courts,  the  contention  beino^  that  the  tuo^-boat 
companies  hold  themselves  out  as  ready  and  willing  to  take 
an}''  and  all  vessels  or  transports  loaded  with  freight,  or  other- 
wise, in  tow  for  hire,  and  conduct  them  to  whatever  place  is 
desii'ed  within  the  limits  of  their  ability,  and  that  while  so 
having  the  vessel  or  transport  in  tow  it  is  entirely  within  their 
control  and  custody.  The  weight  of  authority  seems,  however, 
not  to  sustain  the  contention,  holdino^  that  while  the  towino^- 
boat  or  tug  may  have  control  of  the  vessel  or  transport  to  the 
extent  of  directing  her  course  and  controlling  her  progress,  the 
company  or  owners  of  the  tug  have  no  control  over  the  cargo; 
that  it  is  in  the  immediate  control  and  custody  of  those  in  con- 
trol of  the  transport  upon  which  it  is  being  carried;  and  in  case 
of  accident  they  would  be  expected  to  take  care  of  the  property 
and  protect  it  to  the  utmost  extent  of  their  ability. 

Mr.  Justice  Gray,  in  delivering  the  opinion  of  the  court  in 
The  J.  P.  Donaldson^  said:  "  While  the  tug  is  performing  her 
contract  of  towing  the  barges,  they  may  indeed  be  regarded 
as  part  of  herself  in  the  sense  that  her  master  is  bound  to  use 
due  care  to  provide  for  their  safety  as  well  as  her  own,  and 
avoid  collision  either  of  them  or  of  herself  with  other  vessels/ 
But  the  barges  in  tow  are  by  no  means  put  under  the  control 
of  the  master  of  the  tug  to  the  same  extent  as  the  tug  herself, 
■and  the  cargo,  if  an}^  on  board  of  her.  A  general  ship  carry- 
ing goods  for  hire,  whether  employed  in  internal,  in  coasting 
or  in  foreign  commerce,  is  a  common  carrier,  and  the  ship  and 
her  owners,  in  the  absence  of  a  valid  agreement  to  the  con- 
trary, are  liable  to  the  owners  of  the  goods  carried  as  insurers 
against  all  losses,  excepting  only  such  irresistible  causes  as  the 
act  of  God  and  public  enemies.-  But  a  tug  and  her  owners 
are  subject  to  no  such  liability  to  the  owners  of  the  vessels 
towed  or  of  the  cargoes  on  board  of  them.  The  owners  of 
the  vessels  or  cargoes  cannot  maintain  an}?-  action  for  the  loss 
of  either  against  the  tug  or  her  owners,  without  proving  neg- 
ligence on  her  part.     As  was  said  by  Mr.  Justice  Strong,  and 

1  The  Syracuse,  9  Wall.  672.    675,        2  Liverpool  Steamboat  Co.  v.  Phoe- 
676;  The  Civilta.  103  U.  S.  699,  701.        nix  Ins.  Co.,  129  U.  S.  397,  437. 

380 


CH.   II.]  PUBLIC    OR    COMMON    CARRIERS.  [§  415. 

repeated  by  the  present  Chief  Justice:^  'An  engagement  to  tow 
does  not  impose  either  an  obligation  to  insure,  or  the  liability 
of  common  carriers.  The  burden  is  always  upon  him  who 
alleges  the  breach  of  such  a  contract  to  show  either  that  there 
has  been  no  attempt  at  performance,  or  that  there  has  been 
negligence  or  unskilfulness  to  his  injury  in  the  performance. 
Unlike  the  case  of  common  carriers,  damage  sustained  by  the 
tow  does  not  ordinarily  raise  a  presumption  that  the  tug  has 
been  in  fault.  The  contract  requires  no  more  than  that  he  who 
undertakes  to  tow  shall  carry  out  his  undertaking  with  that 
degree  of  caution  and  skill  which  prudent  navigators  usually 
employ  in  similar  services.'  " 

The  authorities,  however,  are  not  entirely  harmonious  upon 
this  subject,  and  there  are  jurisdictions  where  it  is  maintained 
that  tugs  are  common  carriers,  and  that  the  vessel  they  are 
towing  is  being  conveyed  by  them  as  a  common  carrier,  and 
that  they  are  subjected  to  the  same  extraordinary  liability .^ 

§  415.  Contrary  holdings. —  The  cases  cited  are  such,  for 
example,  as  where  the  tug  continually  and  habitually  as  a  busi- 
ness plies  between  certain  points,  holding  out  to  the  public  that 
they  will  take  in  charge  vessels  or  barges  or  crafts,  and  tow 
them  to  certain  points.  In  some  cases  where  the  vessel  being 
towed  would  be  unable  to  make  her  way  except  when  assisted 
by  the  tow-boat,  it  is  claimed  that  in  such  case  the  tow-boat 
company  or  owner  is  in  entire  control  of  the  vessel  towed,  and 
that  it  should  be  as  liable  for  the  cargo  of  the  vessel  as  though 
the  vessel,  cargo  and  all  were  loaded  upon  her  decks.'' 

iThe  Webb,  14  Wall.  406,  414;  The  that  relation  would  imply.     It  did 

Burlington,  137  U.  S.  38G,  391;  The  not  have  to  pay  the  master  and  the 

L.  P.  Dayton,  120  U.  S.  337,  351.     In  men  in  charge,  nor  did  it  exercise  that 

Transportation  Line  v.  Hope,  95  U.  S.  internal  control  of  her  cargo,  its  stor- 

297,  in  which  the  owner  of  a  large  age,  its  protection  and  the  like  which 

barge  maintained  an  action  against  belonged  to  a  bailee, 

the  owner  of  a  tug  for  negligence  of  ^Sproul  v.  Hemingway,  14  Pick.  1, 

the  master  of  the  tug  by  which  the  25  Am.  Dec.  350;   Wiiite  v.  Steam 

barge  was  totally  lost,  it  was  held  by  Tug  Mary  Ann,  6  Cal.  402,  05  Am. 

thesupremecourtoftheUnitedStates  Dec.  523;  Ashmoore  v.  Pennsylvania 

that  while  the  tug  had  the  control  of  Steam-towing  Co.,  28  N.  J.  L.  180. 

the  barge,  so  far  as  it  was  necessary  » Bussey  v.  Miss.  Valley  Transp.  Co., 

to  enable  it  to  fulfill  its  contract  to  24  La.  Ann.  1G5,  13  Am.  Dec.  120,  in 

tow  the  barge  she  did  not  occupy  the  which  Judge  Howell  held  that  the 

position  of  a   common   carrier,  not  conflict    of    authorities    except    in 

having  that  exclusive  control  whicli  Brown  v.  Clegg,  03  Pa.  St.  51,  is  more 

381 


§  41G.] 


CARRIERS. 


[part  V. 


§  416.  Ferry-boats. —  Ferrymen  are  held  to  be  common  car- 
riers, and  it  ma}^  be  said  that  the  authorities  generally  concede 
that  this  relation  exists  and  applies  to  ferrymen  and  ferry  com- 
panies. To  this  rule,  however,  it  must  be  conceded  that  there 
are  limitations,  but  which  would  apply,  perhaps,  only  where  the 
owner  of  the  ferry-boat  has  not  the  full  custody  and  control  of 
the  property  on  board.  As,  for  example,  where  a  passenger 
takes  on  board  hand  baggage,  or  parcels  which  he  keeps  in  his 
possession  and  under  his  control,  in  such  case  it  cannot  be  said 
that  any  of  the  reasons  of  public  policy  upon  which  the  ex- 
treme liability  of  common  carriers  is  based  apply.^ 


imaginary  than  real,  saying:  "  There 
are  two  very  different  waj^s  in  which 
a  steamboat  may  be  employed,  and 
it  is  likely  that  Mr.  Story  (Story  on 
Bailm.,  sec.  496)  was  contemplating 
one  method  and  Mr.  Kent  (3  Kent's 
Com.  599)  the  other.  In  the  first 
place  it  may  be  employed  as  a  mere 
means  of  locomotion  under  the  entire 
control  of  the  towed  vessel,  or  the 
owner  of  the  towed  vessel  and  goods 
therein  may  remain  in  possession  and 
control  of  the  property  thus  trans- 
ported to  the  exclusion  of  the  bailee, 
or  the  towing  may  be  casual  merely, 
and  not  as  a  regular  business  be- 
tween fixed  termini.  .  .  .  And  it 
might  well  be  said  that  under  such 
circumstances  the  tow-boat  or  tug  is 
not  a  common  carrier.  But  a  second 
and  quite  different  method  of  em- 
ploying a  tow-boat  is  where  it  plies 
regularly  between  fixed  termini, 
towing  for  hire  and  for  all  persons 
barges  ladened  with  goods,  and  tak- 
ing into  her  full  possession  and  con- 
trol, and  out  of  the  control  of  the 
bailor,  the  property  thus  transported. 
...  It  seems  (meaning  the  last 
above  (O  ulition)  to  satisfy  every  re- 
quiremtnt  in  the  definition  of  a  com- 
mon carrier.  .  .  .  We  must  think 
that  in  all  reason  the  liability  of 
the  defendants  under  such  circum- 
stances would  be  precisely  the  same 
as  if  the  barge,  being  much  smaller. 


had  been  carried,  cargo  and  all,  on 
the  decks  of  their  tug." 

1  Wyckoff  V.  Queens  County  Ferry 
Co..  52  N.  Y.  32-34.  "While  ferry- 
men, by  reason  of  the  nature  of  the 
franchise  they  exercise,  and  the  char- 
acter of  the  services  they  render  to 
the  public,  are  held  to  extreme  dili-' 
gence  and  care,  and  to  a  stringent 
liability  for  any  neglect  or  omission 
of  dut}',  they  do  not  assume  all  the 
responsibility  of  common  carriers. 
Property  carried  upon  a  ferry-boat 
in  the  custody  and  control  of  the 
owner,  a  passenger,  is  not  at  the  sole 
risk  either  of  the  ferryman  or  the 
owner.  Both  have  duties  to  perform 
in  respect  to  it.  If  lost  or  damaged 
by  the  act  or  neglect  of  the  ferry- 
man, he  must  respond  to  the  owner. 
The  ordinary  rules  governing  in  ac- 
tions for  negligence  apply,  and  a 
plaintiff  cannot  recover  if  he  is 
guilty  of  negligence  on  his  part,  con. 
tributing  to  the  loss.  The  liabilitj' 
of  a  common  carrier,  in  all  of  its  ex- 
tent, only  attaches  when  there  is 
an  actual  bailment,  and  the  party 
sought  to  be  charged  had  the  exclu- 
sive custody  and  control  of  property 
for  carriage.  A  ferryman  does  not 
undertake  absolutely  for  the  safety 
of  goods  carried  with  and  under  the 
control  of  the  owner;  but  he  does 
undertake  for  their  safety  as  against 
the  defects  and  insufficiencies  of  his 


CH.  II.]  PUBLIC    OR    COMMON    CAEKIERS.  [§§  417-419. 

§  417.  Carriers  by  land. —  So  numerous  are  the  com- 
mon carriers  by  land  that  it  would  hardl}^  be  possible  for  us  to 
mention  them  all,  nor  would  it  be  profitable,  as  we  can  deter- 
mine who  are  common  carriers  by  an  application  of  the  rules 
already  discussed  and  to  be  discussed  in  this  section.  It  may, 
however,  be  profitable  to  mention  a  few  and  to  discuss  the  law 
applicable  to  their  case. 

§  418.  Hackmeii  and  omnibus  men. —  Persons  who  are  em- 
ployed for  hire  in  carrying  passengers  and  baggage,  and  solicit- 
ing general  patronage  from  the  public  in  that  particular  line, 
are  common  carriers.  In  Parmelee  v.  McNulty  ^  the  court  say : 
"The  court  was  authorized  to  take  notice  that  the  owner  of  an 
omnibus  line  is  a  common  carrier  just  as  much  as  the  owner  of  a 
railroad  or  a  line  of  steamboats.  The  court  will  take  notice  of  the 
general  meaning  of  words,  and  we  know  that  an  omnibus  line 
means  a  line  of  coaches  for  the  carriage  of  passengers  and  their 
baggage;  "  ^  and  in  the  absence  of  an  express  contract,  a  carrier 
of  passengers  by  hackney  coach  was  held  liable  for  injuries  re- 
sulting from  his  negligence  to  a  gratuitous  passenger.* 

§  419.  Truckmen,  cartmen,  and  owners  of  wagons.^ 

In  every  city  and  town,  and  generally  about  every  railway 
station,  are  found  those  who  are  engaged  in  carting  freight 
carrying  express,  boxes,  trunks,  packages,  and  whatever  they 
can  obtain  within  their  line  to  carry  for  hire.  They  are  en- 
gaged in  a  public  employment;  they  are  public  carriers.  To 
such  the  owners  of  property  intrust  their  goods;  placing  them 
in  their  entire  custody  and  control  to  be  carried  to  the  desired 
destination.  Such  persons  carrying  for  hire,  and  holding  them- 
selves out  to  the  public  as  ready  to  engage  in  the  carrying 
trade  within  the  course  of  their  particular  employment,  are 
common  carriers,  and  as  such  are  subject  to  the  duties  and  lia- 
bilities of  common  carriers.  A  rather  extreme  case  is  given  us 
by  the  supreme  court  of  Illinois,  but  which  is  undoubtedly 
sound  in  principle.     In  a  case  involving  this  question  the  court 

boat,  and  other  appliances  for  the  1 19    111.  n.lG;  Bonce    v.  Dubuque, 

performance  of  the  services,  and  for  etc.  R.  Co.,  53  Iowa,  378,  30  Am.  Rep. 

the  neglect  or  want  of  skill  of  himself  221. 

and   his  servants."    White  v.  Win-  2 Hutch,  on  Car.,  sees.  •'iO,  GO;  Par- 

nisimet     Co.,    7     Cush.     l.'iS;    Will-  melee  v.  Lowitz,  74  111.  110. 

oughby  v.  Horridge,  13  C^om.  B.  743;  »  Lemon  v.  Chanslor,  08  Mo.  340,  30 

Walker  v.  Jackson,  10  M.  &  W.  101.  Am.  Rep.  799. 

383 


§.^  420,  421.]  CAEKIEKS.  [PAKT    V. 

held:  ""Whepe  a  person,  whose  principal  pursuit  is  farming, 
solicits  ooods  to  be  carried  to  the  market  town  in  his  vvao;on  on 
certain  occasions,  he  makes  himself  a  common  carrier  for  those 
who  employ  him."^  During  the  time  he  is  engaged  in  the  pub- 
lic employment  he  solicits  all  who  have  such  property  or  articles 
to  be  carried  to  intrust  them  to  him,  and  pay  him  for  trans- 
porting them, 

§  420.  Street-car  companies. —  Street-car  companies 

are  without  question  common  carriers  of  passengers.  There 
seems  to  be  no  dissent  to  this  question.  In  this  vocation,  how- 
ever, they  are  not  liable  as  insurers  of  their  passengers'  safet}'-, 
but,  as  we  shall  see,  are  liable  only  for  negligence  in  case  of 
injury.  They  are  also  common  carriers,  and  subject  to  liabil- 
ity as  such  when  they  engage  in  carrjnng  goods  for  hire  or 
baggage  for  their  passengers,  as  other  common  carriers.  In 
later  years  these  companies,  having  pushed  their  lines  out 
into  the  country  surrounding  their  home  cities,  in  the  way 
of  suburban  lines,  have  become  an  important  factor  in  the 
carrying  trade.  We  find  them  carrying  not  only  passengers 
but  also  baggage  and  freight,  and  they  must  unquestionabh'^  be 
classed  with  railroad  companies  as  being  engaged  in  the  same 
business  and  subject  to  the  same  liabilities.'^ 

§  421.  Express  companies. —  There  has  been  a  great  deal 
of  contention  upon  the  part  of  the  express  companies  in  the 

1  Jackson  Agr.  Iron  Works  v.  Hurl-  science,  art   and  modern   improve- 

burt,  158  N.  Y.  34-37,  held :  "  Hack-  ments  in  their  application  to  such 

men,  wagoners  and  porters  who  un-  transportation."    In  Levi  v.  Lynn  & 

dertake  to  carry  goods  for  hire  as  Boston  R  Co.,  11  Allen,  300,  in  an 

a  common  employment  in  a  city,  and  action  against  a  street  railway  cor- 

from  one  town  to  another,  are  com-  poration  to  recover  for  the  loss  of  a 

mon   carriers.      It  is  not   necessary  box  of  merchandise  delivered  them 

that  the   exclusive   business  of  the  to  be  carried  for  hire  on  the  front 

parties  shall  be  carrying."  platform   of   one   of  their   cars,  the 

^  Citizens'  Street  Ry»  Co.  v.  Twi-  plaintiff  was  permitted,  for  the  pur- 
name.  Ill  Ind.  587.  "A  street  rail-  pose  of  showing  them  to  be  common 
way  company  is  a  common  carrier  carriers,  to  prove  that  other  persons 
of  passengers  with  duties  and  respon-  had  paid  money  to  their  conductors, 
sibilities  analogous  to  those  of  a  rail-  with  the  knowledge  of  their  superin. 
road  company,  and  is  required  to  ex-  tendent,  for  the  carriage  of  mer- 
ercise  the  highest  degree  of  care  and  chandise  by  them.  The  company 
skill  in  the  transportation  of  passen-  was  held  liable  for  the  value  of  the 
gers  by  jiroviding  suitable  tracks,  box. 
rolling  stock,  etc.,  keeping  pace  with 

3S4 


CH.  II.]  PUBLIC    OR    COMMON    CAKKIERS.  [§  421. 

courts  as  to  whether  they  are  common  carriers  or  simply  for- 
warders, because  of  the  manner  of  carrying  on  their  busi- 
ness, depending  as  they  do  for  carriage  of  the  goods  intrusted 
to  them  upon  other  companies,  the  express  companies,  as  a 
rule,  having  no  vehicles  of  their  own,  except,  perhaps,  their 
trucks  or  wagons  supplied  to  the  different  offices  for  the  de- 
livering of  express  matter.  For  these  reasons  the  express  com- 
panies have  contended  that  they  should  not  be  held  liable  to 
the  extraordinary  liability  that  attaches  to  common  carriers 
of  goods,  but  should  be  held  simply  liable  as  forwarders,  and 
liable  only  for  ordinary  negligence  and  required  to  exercise 
only  ordinary  diligence.  These  contentions,  however,  have  not 
found  favor  in  the  courts,  and  it  may  be  said  to  be  settled  that 
express  companies  are  carriers;  and  this  conclusion  seems  to 
have  been  arrived  at  because  of  the  usual  course  of  business  of 
such  companies.  The  goods  are  intrusted  to  them  to  be  carried 
and  delivered  to  the  consignee,  not  by  any  particular  route  or 
in  any  particular  way;  the  company  may  send  them  by  rail- 
road trains  or  by  steamboats,  or  by  any  way  it  pleases  so  that 
they  are  delivered  within  a  suitable  time  to  the  person  to  whom 
they  are  consigned.  It  is  also  understood  and  expected,  and 
from  the  usual  course  of  business  the  company  impliedly  agrees, 
that  an  agent  or  manager,  as  he  is  called,  of  the  company's  own 
appointing,  will  accompany  the  goods  and  take  particular 
charge  and  care  of  them  on  the  route.  For  this  reason  it  can- 
not be  said  that  the  company  does  not  have  entire  custody  and 
control  of  the  property  during  the  entire  time  of  transit.  Upon 
their  arrival  in  the  city  or  town  to  which  they  are  sent,  the 
manager  or  agent  at  once  delivers  them  to  the  local  agent  of 
the  company,  who  takes  charge  of  them  and  delivers  or  causes 
them  finally  to  be  delivered  to  the  consignee  in  person,  or  to 
his  place  of  business  or  residence,  and  to  persons  authorized  to 
receive  them,  so  that  the  property  sent  by  expressy  companies 
may  be  said  to  be  more  exclusively  and  particularly  in  the  con- 
trol of  the  express  companies  during  transit  than  in  most  cases 
where  property  is  transferred  by  common  carriers.  The  su- 
preme court  of  Massachusetts,  in  Buchland  v.  Adcnns  Exjn'ess 
Co.^  very  fully  and  clearly  discusses  this  question,  holding 

1 97  Mass.    124,    93   Am.    Dec,   G8;    2  Redfield  on  Railways,  1-lG;  Ken- 
Dvviglit  V.  Brewster,  1  Pick.  50,  53:    tucky  Bunk  v.  Adams  Exp.  Co.,  93 
25  'o^h 


§  ^21.] 


CAEEIEKS. 


[PAKT    V. 


that  the  name  or  style  under  which  they  assume  to  carry  on 
their  business  is  wholly  immaterial;  the  real  nature  of  their 
occupation,  and  of  the  legal  duties  and  obligations  which  it 
imposes  on  them,  is  to  be  ascertained  from  a  ^consideration  of 
the  kind  of  service  which  they  hold  themselves  out  to  the  pub- 
lic as  ready  to  render  to  those  who  may  have  occasion  to  em- 
ploy them.  Upon  this  point  there  is  no  room  for  doubt.  They 
exercise  the  employment  of  receiving,  carr3ing  and  delivering 
goods,  wares  and  merchandise  for  hire  on  behalf  of  all  persons 
who  may  see  fit  to  require  their  services.  In  this  capacity 
they  take  property  from  the  custody  of  the  owner,  assume  en- 
tire possession  and  control  of  it,  transport  it  from  place  to 
place,  and  deliver  it  at  the  point  of  destination  to  a  consignee 
or  agent  there  authorized  to  receive  it.  This  statement  em- 
braces all  the  elements  essential  to  constitute  the  relation  of 
common  carrier  on  the  part  of  express  companies  toward  the 
persons  who  employ  them. 


U.  S.  174;  Christenson  v.  American 
Exp,  Co.,  15  Minn.  270,  2  Am.  Rep. 
122.  In  this  case  the  express  com- 
pany undertook  by  their  receipt  to 
the  consignor  to  limit  their  liability 
to  mere  forwarders.  Tlie  court  in 
its  opinion  makes  a  full  statement  of 
the  course  of  business  of  the  express 
company,  stating  that  they  are  en- 
gaged probably  in  the  business  of 
transmitting  for  hire  goods  from 
place  to  place.  That  they  establish 
local  offices  at  which  agents  are  sta- 
tioned whose  duty  it  is  to  receive 
goods  transmitted  and  deliver  the 
same  to  the  consignee  as  well  as  to 
receive  goods  for  transmission;  that 
the  express  companies  own  no  ve- 
hicles or  other  means  of  transporta- 
tion except  such  as  are  kept  at  tlieir 


of  the  case,  and  holding  that  the  ex- 
press company  is  a  common  carrier, 
the  court  say:  "  The  defendants  style 
tliemselves  express  forwarders  and 
they  agree  to  forward  the  goods,  but 
this  language  does  not  necessarily 
give  them  the  character  of  simple 
forwarders,  nor  prevent  them  from 
being  treated  as  common  carriers." 
Read  v.  Spaulding,  5  Bosw.  404; 
Sweet  V.  Barney,  23  N.  Y.  335;  U.  S. 
Exp.  Co.  V.  Backman,  28  Ohio  St.  144: 
Verner  v.  Sweitzer,  32  Pa.  St.  208: 
Southern  Exp.  Co.  v.  McVeigh,  20 
Grat.  (Va.)  264;  Hutchinson  on  Car- 
riers, 68-71 ;  2  Redfield  on  Railways, 
19-30.  Merchants'  Disp.  Co.  v.  Bloch, 
86 Tenn.  392,  held:  "A transportation 
company  not  owning  or  controlling 
any  means  of  conveyance  itself,  but 


local  office  and  used  for  carrying  engaging  onits  own  behalf  in  the  busi- 
goods  to  and  from  such  office  and  to  ness  of  transporting  goods  through 
their  customers;  that  the  practice  of  the  agency  and  over  the  lines  of 
the  company  is  to  transmit  goods  by  other  carriers  of  its  own  selection 
steamboats,  railroads,  coaches,  etc.,  and  employment,  is  a  common  car- 
owned  and  controlled  by  other  par-  rier,  and  subject  to  all  the  responsi- 
ties.  That  a  messenger  of  the  com-  bilities  attaching  to  their  character." 
pany  accompanies  the  goods  in  their  6  Am.  St.  Rep.  847. 
transmission.  After  a  full  statement 

386 


CH.  II.]  PUBLIC    OK   COMMON    CAEEIERS.'  [§§  422,  423. 

§  422.  Fast-freight  lines,  dispatch  companies,  etc.— 

A  very  large  trade  or  class  of  business  has  grown  up  and  is 
carried  on  by  companies  calling  themselves  dispatch  compa- 
nies, fast-freight  lines,  etc.  These  companies  generally,  but 
not  always,  own  their  own  vehicles  or  cars,  in  which  the  goods 
intrusted  to  them  for  carriage  are  trans])orted,  employing  rail- 
road companies  to  haul  them  to  their  destination;  but  in  some, 
oases  when  not  using  their  own  cars,  they  emplo}'  the  railroad 
companies  to  transport  the  freight  in  their  vehicles;  all  such 
companies  are  held  to  be  common  carriers  and  are  held  to  the 
extraordinary  liability  that  attaches  to  such  carriers.  They 
receive  the  freight  from  the  consignor,  and  contract  to  carry 
it  and  deliver  it  to  the  consignee.  The  custody  and  control  of 
the  property  is  handed  over  to  these  companies  by  the  con- 
signor for  the  purpose  of  being  transported.  They  take  the 
property  into  their  custody  and  control,  and  are  obliged  by 
their  contract,  express  or  implied,  to  carry  and  deliver  it  to  the 
consignee.  They  are  bound  to  comply  with  all  the  require- 
ments incident  to  the  business  of  a  common  carrier,  and  are 
held  to  the  same  liability.^ 

§  423.  Transfer  companies. —  So  companies  in  the  sev- 
eral towns  and  cities  ^vho  solicit  the  business  of  transferring 
for  all  who  apply  to  them  and  pay  the  compensation,  baggage 
or  freight  from  one  railroad  or  steamboat  station  to  another, 
or  who  deliver  baggage  or  freight  to  the  owners  and  consign- 
ees, are  common  carriers,  and  as  such  liable  for  the  loss  of  or 
injury  to  the  property.  It  has  been  held,  however,  that  when 
these  companies  transfer  freight  between  connecting  carriers 
they  are  acting  as  the  agents  of  the  carriers,  and  are  not  liable 
as  common  carriers,  upon  the  principle,  it  would  seem,  that  the 
control  of  the  goods  is  not  in  their  hands,  but  is  with  the  car- 

iBank  of  Kentucky  v.  Adams  Ex.  constitute  another  person  or  corpo- 

Co.,  93  U.  S.  174.     It  was  held  "  that  ration  the  agent  of  his  consignor  or 

a  party  engaged  as  a  common  carrier  consignee;  he  may  employ  an  agency, 

by  declaring  or  stipulating  that  he  but  it  must  be  subordinate  to  Jiim- 

shall   not   be   so  considered    divests  self  and  not  to  the  shipper,  wlio  nei- 

himself  of  the  liability  attached  to  ther  employs  it.  pays  it.  nor  lias  any 

the  fixed  legal  character  of  that  oc-  right  to  interfere  with  it;  its  acts  be- 

cupation.     A   common  carrier   who  come  his  because  done  in  his  service 

undertakes  for  himself  to  perform  an  and  by  his  direction."    Hutchinson 

ventire  service  has  no  authority  to  on  Carriers,  sec.  7^. 

387 


§  424.]  CARRIERS.  [part    T. 

riers  who  employ  them.  A  late  case  has  held  that  this  is  the 
rule  when  transferring  goods  at  the  end  of  the  route  to  the  con- 
signee, the  transfer  company  acting  for  the  carrier.^ 

§  424,  Railroad  companies. —  Railroad  companies  are,  as 
has  been  said  by  an  eminent  jurist,  "eminently  common  car- 
riers,"—  common  carriers  of  passengers  and  common  carriers 
of  freight.  As  common  carriers  of  passengers  their  duties  and 
liabilities  are,  as  we  shall  see,  very  different  from  their  duties 
and  liabilities  as  common  carriers  of  goods.  That  they  hold 
themselves  out  to  the  public  as  common  carriers  there  can  be 
no  doubt.  Their  whole  purpose  and  aim  and  course  of  busi- 
ness proclaim  that  their  desire  and  business  is  to  carry  the 
goods  of  all  who  call  upon  them  for  that  service.  They  are 
the  most  important  of  the  carriers.  Eailroad  companies  con- 
struct their  great  thoroughfares  through  the  country  for  the 
purpose  of  meeting  the  demands  of  the  public  for  the  transpor- 
tation of  merchandise  and  passengers.  They  have  often  been 
the  pioneers  of  new  and  undeveloped  sections  of  country,  push- 
ing their  way  across  the  broad,  uncultivated  prairies  of  the 
west,  even  scaling  the  great  mountain  ranges,  opening  new 
agricultural  interests,  developing  the  farms,  showing  the  mine 
owners  of  the  immense  coal  and  iron  fields  as  well  as  of  the 
more  precious  metals  a  way  to  the  great  markets  of  the  world, 
at  the  same  time  making  it  possible  to  operate  and  develop  these 
valuable  properties,  and  always  soliciting  the  great  carrying 
trade  as  common  carriers.'^ 

1  Nansen  v,  Jacobs,  13  Mo.  App.  ger  for  the  safe-keeping  and  delivery 
125;  affirmed,  93  Mo.  331;  30  Am.  &  of  the  baggage." 
Eng.  R.  Cases,  553;  Western  R.  Co.  v.  2  Norway  Plains  Co.  v.  Boston  & 
Cotton  Mills,  81  Ga.  522;  Da  Pointe  M.  R.  Co.,  1  Gray,  263,  269.  "That 
V.  New  Orleans  Transfer  Co.,  42  La*  railroad  companies  are  authorized 
An.  696;  Verner  v.  Sweitzer,  32  Pa.  by  law  to  make  roads  as  public  high- 
St.  208.  In  Da  Pointe  v.  Transfer  ways,  to  lay  down  tracks,  place  cars 
Co.,  "  a  passenger  on  a  railway  train,  upon  them,  and  carry  goods  for  hire, 
having  arrived  at  the  point  of  desti-  are  circumstances  which  bring  them 
nation,  entered  into  a  contract  with  within  all  the  rules  of  the  common 
a  transfer  company  for  an  agreed  law,  and  make  them  eminently  corn- 
compensation  to  procure  his  baggage  mon  carriers.  Their  iron  roads,  though 
from  the  railroad  company's  depot  built,  in  the  first  instance,  by  indi- 
and  haul  it  to  his  residence,  and  for  vidual  capital,  are  yet  regarded  as 
that  purpose  surrendered  his  baggage  public  roads,  required  by  common 
checks.  Held,  that  the  transfer  com-  convenience  and  necessity,  and  their 
pany  was  responsible  to  the  passen-  allowance  by  public  authority  can 

388 


CH.  II.]  PUBLIC    OK    COMMON    CARRIEES.  [§§  425-427. 

§  425.  Eeceivers  and  trustees. —  And  so  it  may  be  said 
that  receivers  and  trustees  of  railroad  companies,  who  operate 
the  road  as  such  officers,  are  common  carriers ;  they  are  simply 
the  agents  of  the  company,  subject  to  the  same  liability. 

§  426.  Not  all  railroad  companies  are  common  car- 
riers.—  There  are,  as  it  is  well  understood,  railroads  built  and 
operated  by  private  persons,  companies  or  corporations  for 
their  own  private  use;  as,  for  example,  logging  roads,  built 
for  the  purpose  of  hauling  out  logs  from  tracts  of  timber 
land ;  roads  built  into  coal-mines  or  iron-mines,  used  only  and 
exclusively  for  the  accommodation  of  the  particular  property 
of  the  owners;^  or  where  the  compan}?^  owns  and  furnishes 
the  motive  power  and  rolling-stock,  all  of  which  is  operated 
and  controlled  by  others.'  It  is  the  offering  to  use,  and  oper- 
ating the  road  for  the  public  to  carry  the  goods  of  all  who 
come,  that  makes  the  company  liable  as  common  carriers. 

§  427.  Who  are  not  common  carriers. — While  we  will  not 
at  this  time  enumerate  all  who  are  engaged  in  seemingly 
quasi-ipuhlic  service  or  business  who  are  not  common  car- 
riers, it  perhaps  may  be  well  to  mention  some  of  the  avoca- 
tions. Warehousemen  and  forwarding  merchants  are  held 
simply  as  bailees  of  the  mutual-benefit  class,  and  liable  for 

only  be  justified  on  that  ground.  The  but  it  becomes  an  agent  of  the  pub- 
general  principle  has  been  uniformly  lie  in  consequence  of  the  power  con- 
so  decided  in  England  and  in  this  ferred  uix)n  it." 
country;  and  the  point  is  to  ascer-  i  Wade  v.  Lutcher,  etc.  Co.,  74  Fed. 
tain  the  precise  limits  of  their  liabil-  517;  Avinger  v.  S.  C.  R.  Co.,  29  S.  C. 
ity.  .  .  .  Being  liable  as  common  265,  13  Am.  St.  Rep.  716. 
carriers,  the  rule  of  the  common  law  ^Jq  Coup  v.  Wabash,  St.  L.  &  P.  R. 
attaches  to  them,  that  they  are  liable  Co.,  56  Mich.  Ill,  the  plaintiff  had 
for  losses  occurring  from  any  inci-  a  large  circus  property,  including 
dent  which  may  befall  the  goods  horses,  wild  animals  and  various 
during  the  transit,  except  those  aris-  paraphernalia,  with  tents  and  appli- 
ing  from  tlie  act  of  God  or  a  public  auces  for  exhibition.  He  owned 
enemy."  Thomas  v.  Boston,  etc.  R.  special  cars  fitted  up  for  the  car- 
Co.,  10  Met.  472,  43  Am.  Dec.  444;  riage  of  performers  and  properties, 
Sandford  V.  Catawissa,  etc.  R.  Co.,24  in  which  the  whole  concern  was 
Pa.  St.  376,  64  Am.  Dec.  667.  In  Mes-  moved  from  place  to  place  for  exhi- 
senger  v.  Pa.  R.  Co.,  36  N.  J.  Law,  bition.  Plaintiff  made  a  written 
407,  13  Am.  Dec.  457,  the  court  say:  contract  with  defendants  to  the  ef- 
"In  my  opinion  a  railroad  company,  feet  that  the  railroad  company  was 
constituted  under  statutory  author-  to  furnish  men  and  motive  power  to 
ity,  is  not  only  by  force  of  its  in  her-  transfer  the  circus  train  by  one  or 
ent  nature  a  common  carrier,    .    .    .  more  divisions  from  Cairo  to  Detroit, 

389 


§  427.]  CAERIEES.  [part    V. 

ordinary  negligence  and  held  to  ordinary  diligence.^  So  also 
sleeping-car  companies;  these  companies  do  not  control  the 
trains  which  draw  their  cars,  but  are  simply  leased,  as  a  gen- 
eral rule,  by  the  railroad  company  that  operates  the  train.  The 
railroad  company  itself  is  liable  so  far  as  any  extraordinary 
liability  might  attach.  The  sleeping-car  companies  are  only 
liable  in  cases,  as  we  shall  see  later,  where  they  have  taken 
the  custody  or  control  of  the  baggage  of  the  passengers.  So 
telegraph  and  telephone  companies,  postmasters,  mail  contract- 
ors, and  many  others;  none  of  them  are  held  to  be  common 
carriers.^  And  it  has  been  held  that  canal  companies  are  not 
common  carriers  in  the  sense  that  they  are  bound  for  the  safe, 
navigable  state  of  the  canal,  being  only  bound  to  the  exercise 
of  reasonable  care;'  and  that  a  canal  company  is  not  liable  as 
a  common  carrier  for  timber  lost  from  rafts  transported  by  it, 
b}^  theft,  sinking  or  otherwise.* 

with  privilege  of  stopping  for  exhi-  ings  have  peculiar  features  of  their 

bition  at  three  places  named,  fixing  own,  but  they  cannot  be  brought 

the  time  of  starting  from  each  place  within  the  range  of  common  car- 

of  exhibition;  plaintiff  to  furnish  his  riaga"'    Mann   v.  White  River,,  etc 

own    cars,   and  two   from    another  Co.,  46  Mich.  38;  Chicago,  etc.  R.  Co. 

company  in  good  condition  and  run-  v.  Wallace.  66  Fed.  506. 

ning  order.     A  stipulated  price  was  i  Denny  v.  N.  Y.  Cent.  R.  R.  Co.,  13 

agreed  upon  which  the  plaintiff  was  Gray,  481,  115  Mass.  332,  8  Cow.  223. 

to  pay.     Under  such  a  state  of  facts  ^  Mann  v.  Logging  Co.,  46  Mich.  38, 

the  court  held  that  the  railroad  com-  41  Am.  Rep.  149. 

pany  was  not  liable  as  common  car-  ^  Pa.  Canal  Co.  v.  Burd,  90  Pa.  St. 

tiers.     The  court  say  it  is  a  misno-  281,  31  Am.  Rep.  659. 

mer  to  speak  of  such  an  arrangement  ^  Watts  v.  S.  &  O.  Canal  Co.,  64  Ga. 

as  an  agreement  for  carriage  at  all.  88,  37  Am.  Rep.  53. 

.    .    .    All  these   special  undertak- 

390 


CHAPTER  III. 


CARRIERS   OF  GOODS  —  SOME  ESSENTIALS  THAT  FIX  THE  LIA- 
BILITY  OF  COMMON  CARRIERS. 


428.  Object  of  the  chapter  —  Some 

presumptions. 

429.  Certain  facts  must  be  proven. 
480.  Delivery  of  the  property  for 

transportation. 

431.  The  place  of  delivery. 

432.  Usage  and  custom. 

433.  Actual    notice  of  deposit  of 

goods. 

434.  Time  of  delivery. 

435.  By  vphom  must   delivery   be 

made  and  to  wliom. 


436.  To  whom  must  delivery 

be  made. 

437. Facts  relied  upon  to  show- 
apparent  authority  must  be 
clear. 

438.  Agents  authorized  to  receive. 

439.  Constructive  delivery. 

440.  Rules  permitting  constructive 

delivery  must    be    applied 
with  great  caution. 


§428.  Object  of  the  chapter  —  Some  presiiinptions.— We 

have  discussed  in  the  previous  chapter  some  of  the  essential 
requisites  of  a  common  carrier,  determining  that  these  requi- 
sites must  exist  in  the  given  case  before  one  can  be  held  to  be 
a  common  carrier.  It  is  the  object  of  this  chapter  to  dis- 
cuss the  facts  or  essentials  that  must  exist  in  order  to  fix  upon 
the  carrier  liability  for  loss  or  injury  of  property  delivered  to 
him  for  carriage.  From  what  has  been  said  it  follows  that 
certain  persons  and  companies  holding  themselves  out  to  the 
public  as  ready  to  transport  the  goods  of  others  for  hire  are 
common  carriers,  and  so  unquestionably  and  notoriously  do 
they  possess  all  the  requisites,  that  the  courts  without  especial 
proof  of  these  requisites  will  presume  them  to  be  such,  and 
shouUl  they  deny  the  relation,  namely,  that  they  are  common 
carriers,  the  burden  of  proving  that  they  are  not  would  be 
upon  them,  as  the  presumption  is  so  strong  and  the  fact  so 
generally  understood;  as,  for  example,  railroatl  companies, 
steamboat  companies,  express  companies,  and  all  such  persons 
and  companies  as  are  generally  known  to  follow  the  pursuit 
of  carrying  goods  for  all  who  apply  to  them  and  pay  the  com- 
pensation. But  to  fix  the  liability  for  loss  or  injury  to  the 
property  carried  by  these  common  carriers  much  more  is  re- 

391 


§§  420,  430.]  CARRIERS.  [part  v. 

quired,  for  the  carrier  is  not  called  upon  to  respond  in  every 
case  of  loss,  nor  is  he  at  all  times  liable  to  the  extraordinary 
liability.^ 

§  429.  Certain  facts  must  be  proven. —  Before  the  extraor- 
dinar}' liability  can  attach  it  must  be  shown  that  the  goods 
lost  or  injured  were  delivered  to  the  carrier  for  transportation 
in  the  usual  and  ordinary  manner,  and  were  of  such  a  kind  as 
the  carrier  holds  out  to  the  public  he  will  carry,  and  as  he  is 
reasonably  expected  by  the  public  to  carry.  The  element  that 
has  much  to  do  with  fixing  the  liability  is  the  placing  of  the 
property  in  custody  and  exclusive  control  of  the  carrier  for  the 
time  for  transportation.  Then,  too,  the  kind  of  goods,  as  we 
shall  see,  has  much  to  do  with  fixing  the  liability,  or  rather, 
perhaps,  in  excusing  the  carrier  from  it;  as,  for  example, 
whether  the  goods  or  property  are  animate  or  inanimate; 
whether  perishable  or  otherwise,  or  whether  from  their  own 
inherent  nature  liable  to  destruction  or  injury;  for  the  com- 
mon and  ordinary  understanding  of  men  would  lead  one  to 
know  that  the  duties  of  the  common  carrier  would  be  very 
much  different  in  handling  animate  or  inanimate  freight,  or 
perishable  or  destructible  property,  because  of  its  own  inherent 
nature,  from  that  which  was  otherwise.  Then,  too,  to  fix  the 
liability,  it  must  further  appear  that  the  loss  or  injury  occurred 
while  the  property  was  in  the  course  of  transportation,  and  that 
the  loss  or  injury  was  not  occasioned  by  any  cause  for  which 
the  common  carrier  could  not  be  held  legally  liable.  Each  of 
these  several  questions  calls  for  consideration,  together  with 
others  that  are  important  in  fixing  the  liability  of  the  carrier. 

§  430.  Delivery  of  the  property  for  transportation. — The 
primary  essential  in  fixing  the  liability  of  the  carrier  is  the  de- 
livery to  him  of  the  property  by  the  shipper  for  carriage,  or  the 
tendering  of  the  same  in  some  cases.  This  delivery  may  be 
largely  regulated  by  the  reasonable  rules  and  regulations  of 
the  carrier,  and,  when  so  regulated,  the  shipper  must  follow 
these  regulations  as  well  as  the  requirements  of  the  law.  The 
delivery  must  be  complete;  the  property  placed  in  the  custody 
and  entire  control  of  the  carrier  for  immediate  transportation. 
If  it  is  delivered  with  the  understanding  that  it  is  to  be  held 
in  the  common  carrier's  warehouse  for  a  time,  or  until  the  hap- 

1  Hutchinson  on  Carriers,  sec.  73. 
392 


CH.  III.]  ESSENTIALS    THAT    FIX    LIABILITY.  [§  430. 

pening  of  come  event  which  is  to  decide  the  question  as  to 
where  the  consignor  will  ship  it,  or  if  it  is  to  be  held  for  any 
length  of  time  and  then  shipped,  it  cannot  be  said  to  be  a  de- 
livery for  shipment  in  the  sense  that  binds  the  carrier  to  the 
extraordinary  liability  during  the  interim  between  such  deliv- 
ery and  shipment;  and  in  such  case,  as  we  shall  see,  the  carrier 
for  that  time  is  only  an  ordinary  bailee  of  the  property,  from 
whom  is  required  ordinary  diligence  in  caring  for  it.  It  is  the 
complete  delivery  for  immediate  transportation,  the  surrender- 
ing of  the  entire  custody  and  control  of  the  property  for  the 
time  for  transportation,  that  fixes  the  liability  of  the  common 
carrier;  this  is  the  important  essential.  And  so  it  has  been 
held  that  the  relation  of  shipper  and  carrier  does  not  begin 
between  the  owner  of  the  goods  and  the  common  carrier, 
though  the  former  may  have  delivered  the  goods  to  the  latter, 
if,  after  such  delivery,  anything  is  required  or  remains  to  be 
done  by  the  shipper,  either  because  of  the  contract  for  ship- 
ment or  on  account  of  any  of  the  rules  or  regulations  of  the 
company.^  And  where  the  goods  were  receipted  for  by  the 
carrier's  agent,  who  had  no  knowledge  of  their  delivery  except 
a  slip  signed  by  the  boatman,  it  was  held  that  no  liability  was 
created,  the  goods  in  fact  not  having  been  delivered  to  the 
carrier.^  And  where  the  agent  of  the  carrier  merely  gave  the 
shipper  permission  to  place  his  cattle  in  the  company's  yards, 
no  bill  of  lading  having  been  given,  in  such  case  the  company 

1  It  was  held  in  Wilson  v.  Atlanta,  had  still  to  be  loaded,  counted  and 
etc.  R.  Co.,  82  Ga.  386,  that  "delivery  receipted  for,  it  was  held  that  deliv- 
of  goods  to  a  common  carrier  for  ery  was  not  complete,  and  the  corn- 
transportation,  whether  actual  or  pany  could  not  be  held  liable  for  the 
constructive,  being  a  bailment,  in-  delay.  Frazier  v.  Railroad  Co.,  48 
volves  exclusive    possession   in  the  Iowa,  571. 

carrier,  and  this  involves  a  surrender        "'^The  Willie  D.  Sandhoval,  92  Fed. 

of  custody  and  control  for  the  time  286;  St.  Louis  R.  Co.  v.  Knight,  132 

by  the  consignor."    St.  Louis,  M.  &  U.  S.  79,  80  Lawyers'  ed.  1077,  held 

8.  R.  Co.  v.  Insurance  Co.,  139  U.  S.  "that  the  relation  is  not  established 

223;  Leigh  v.  Smith,  1  Car.  &  P.  638;  until  the  specific  lots  of  property  in- 

Dixon  V.  Railroad  Co.,  110  Ga.  173.  tended  for  the  carrier  have  been  sep- 

Where  hogs  had  been  brought  to  the  arated  and  set  apart  and   delivered 

railroad   station  to   be   transported,  to  the  carrier  for  immediate  trans- 

but  at  the   time   the   train  arrived  portation  according  to  the  terms  of 

upon  which  they  were  to  be  taken  the  bill  of  lading." 
ttiey  were  still  in  a  private  yard,  and 

393 


§  431.]  CARRIERS.  [part    V^ 

is  not  rendered  liable  for  damages  caused  by  the  escape  of  the- 
cattle.i 

§  431.  The  place  of  delivery. —  When  the  goods  have  really 
been  delivered  to  the  carrier  for  shipment,  according  to  the  re- 
quirements mentioned  in  the  previous  section,  and  have  been 
received  for  that  purpose  by  the  carrier  or  his  agent,  his  lia- 
bility as  a  common  carrier  commences.  Indeed,  the  goods  have 
already  legall}'  started  upon  their  journey;  they  are  in  transit 
as  much  as  though  they  had  been  loaded  into  the  carrier's  ve- 
hicle and  were  being  carried  over  the  road.  The  carrier,  how- 
ever, has  the  right  to  know  that  the  property  has  been  delivered 
for  carriage,  and  it  has  been  said  that  no  legal  delivery  can  be 
made  without  his  knowledge.  The  carrier  has  the  right,  by 
reasonable  rules  and  regulations,  to  fix  the  place  where  freight 
shall  be  delivered  for  transportation,  and  usuall}^  in  cases  of 
railway  companies  or  transportation  companies  the  place  des- 
ignated is  at  the  warehouse  of  the  company,  or  at  some  other 
convenient  place  named  by  the  carrier.  And  so  it  has  been 
held  that  freight  left  upon  the  platform  or  upon  the  dock,  or 
deposited  on  a  switch,  or  along  the  roadside,  even  though  one 
of  the  company's  servants  promised  to  stop  the  train  there  and 
take  it  on;  or  the  loading  of  goods  upon  a  car  standing  on  the 
side-track  at  the  carrier's  depot,  done  without  the  knowledge 
of  the  agent;  or  depositing  goods  in  the  yard  of  an  inn  from 
which  the  carrier  starts  his  coaches,  and  not  at  a  place  or  one 
of  the  places  designated  for  receiving  goods  for  shipment  by 
the  company,  is  not  a  delivery  to  the  carrier  in  such  a  way  as 
to  render  him  liable  as  such  for  its  loss  or  injury.^ 

^Ft.  Worth  &  D.  R.  Co.  v.  Riley,  1  completed.    It  is  not  enough  that  the 

S.  W,  446;  Louisville  &  N.  R.  Co.  v.  property  is  delivered  upon  the  prem- 

Echols,  97  Ala.  556,  12  So.  304;  Ben-  ises  unless  the  delivery  is  accompa- 

nett  V.  The  Guiding  Star  (D.  C),  53  nied  by  notice  to  the  proper  person. 

Fed.  936;  London  &   L.  Ins.  Co.   v.  The  liability  of  the  carrier  attaches 

Rome,  W.  &  O.  R.  Co.,  23  N.  Y.  S.  231.  only  from  the  time  of  the  acceptance 

2  In  Grosvenor  v.  Railroad  Co.,  39  of  the  goods  by  him.    To  complete  the 

N.  Y.  34,  the  court  say:  "To  render  delivery  of  the  property,  within  the 

a  party  liable  as  a  common  carrier  it  rules  laid  down  in  the  authorities, 

must  be  established  that  the  prop-  I  think  it  is  also  essential  that  the 

erty  was  actually  delivered  to  the  property  should  be  placed  in  such  a 

common  carrier,  or  to  some  person  position  that  it  may  be  taken  care  of 

duly  authorized  to  act  on  his  behalf,  by  the  agent  or  person  having  charge 

The  responsibility  of  the  carrier  does  of  the  business  and  under  his  imme^ 

not  commence  until  the  delivery  is  diate  control."    Angell  on  Car.,  sec 

394 


CH.  III.]  ESSENTIALS    THAT    FIX    LIABILITY.  [§  432. 

§  432.  Usage  and  custom. —  "While  the  law  demands  a  full 
compliance  with  the  rules  governing  the  delivery  of  the  goods 
to  the  carrier  and  to  the  reasonable  regulations  of  the  carrier, 
nevertheless  these  rules  and  regulations  are  more  or  less  varied 
and  limited  by  usage  and  custom  long  continued,  and  which 
have  become  well  understood  by  shippers  and  the  public,  and 
are  in  good  faith  acted  upon.  In  fact,  where  such  usage  and 
custom  has  prevailed  and  for  a  long  time  been  acquiesced 
in  without  change  or  objection  by  the  carrier,  it  may  be 
said  that  rules  and  regulations,  so  far  as  they  infringe  upon 
such  usage  and  custom,  have  been  displaced  and  are  of  no 
legal  effect.  And  so  the  goods  delivered  for  shipment  in 
accordance  with  well  established  usage  and  custom  will  ren- 
der the  carrier  liable,  even  though  it  be  at  a  place  outside  of 
the  carrier's  warehouse,  and  at  another  place  than  that  fixed 
by  the  express  rules  and  regulations  of  the  company.  But 
in  such  case  the  usage  must  be  strictly  followed,  and  where  it 
had  become  a  custom  accepted  and  understood  that  goods  might 
be  delivered  to  the  mate  of  the  ship,  it  was  held  that  this  cus- 
tom or  usage  was  not  complied  with  by  merely  leaving  the 
property  on  the  wharf.^  In  Wright  v.  Caldwell^Hhe  plaintiff,- 
intending  to  take  passage  on  the  steamboat  of  defendant,  de- 
posited his  trunk  on  board  in  the  usual  place  for  baggage,  but 
without  putting  it  in  charge  of  any  person,  or  notifying  any 
one  employed  on  the  boat  of  such  deposit,  or  of  his  intention 
to  take  passage,  and  while  temporarily  absent  from  the  boat 
she  started  on  her  trip  and  he  was  left.  The  trunk  could  not 
afterwards  be  found.  The  court  say:  "It  is  admitted  by  the 
counsel  for  the  plaintiff  that  to  hold  a  common  carrier  liable 
in  respect  to  property  lost  in  the  course  of  his  employment,  it 
is  incumbent  on  him  to  show  a  delivery  of  the  property  to  the 
carrier,  and  its  acceptance  by  him,  for  purposes  contemplated 
by  the  parties.  But  while  this  general  principle  of  law  is  un- 
questioned, its  force  and  effect  is  sought  to  be  obviated  by  the 

139;  Story  on  Bailm.,  sec.  533;  Pack-  v.  Atlanta,  etc.  R.  Co.,  19  S.  C.  39,  13 

ard  V.  Getman,  6  Cow.  757;  Trevor  Am.  &  Eng.  R.  Cas.  479;  Houston  R. 

V.  U.  &  S.  R.  Co.,  7  Hill.  47;  Blanch-  Co.  v.  Hodde,  42  Tex.  467;  Wilson  v. 

ard  V.  Isaacs,  .3  Barb.  388;  3  Kent's  Atlanta  R.  Co.,  82  Ga.  386,  40  Am.  & 

Com.  604;  Dixon  v.  Railroad  Co.,  110  Eng.  R.  Cas.  35. 
Ga.  173;  Louisville  R.  Co.  v.  Flanigan,        i  Leigli  v.  Smith,  1  Car.  &  P.  639. 
113  Ind.  488, 3  Am.  St.  Rep.  674 ;  Brown        2  3  Mich.  51. 

395 


§  432.]  CAERIEKS.  [part    V. 

special  circumstances  of  this  case.  It  is  contended  that  the 
general  principle  is  controlled  by  the  usage  established  by  the 
proof.  It  is  well  settled  by  a  series  of  adjudications  of  high 
authority,  that  if  a  uniform  custom  is  established  and  recog- 
nized by  the  carrier,  and  is  known  to  the  public,  that  property 
intended  for  carriage  may  be  deposited  in  a  particular  place 
without  express  notice  to  him,  that  a  deposit  of  property  for 
that  purpose  in  accordance  with  the  custom  is  constructive  no- 
tice, and  would  render  any  other  form  of  delivery  unneces- 
sary. The  rule  is  founded  in  reason;  as  the  usage,  if  habitual, 
is  a  declaration  by  the  carrier  to  the  public  that  a  delivery  of 
property  in  accordance  with  the  usage  will  be  deemed  an  ac- 
ceptance of  it  by  him  for  the  purpose  of  transportation."  And 
where  it  appeared  that  by  local  custom,  well  understood  and 
accepted  by  the  shipper  and  carrier,  goods  might  be  deliv- 
ered for  shipment  by  placing  them  on  the  platform  of  the 
depot,  it  was  held  that  such  a  delivery  would  support  an  ac- 
tion for  goods  so  delivered  which  were  destroyed  by  fire  set 
by  boys  allowed  to  play  upon  that  platform.^  And  where  it  was 
shown  to  be  the  "constant  and  habitual  practice  and  usage 
of  a  carrier  to  receive  the  goods  when  they  are  deposited  for 
him  in  a  particular  place  without  special  notice  of  such  de- 
posit, it  was  held  sufficient  to  show  a  public  offer  by  the  car- 
rier to  receive  goods  in  that  mode,  and  to  constitute  an  agree- 
ment between  the  parties  by  which  the  goods  when  so  deposited 
shall  be  considered  as  delivered  to  him  without  any  further  no- 
tice. Such  a  practice  and  usage  are  tantamountjo  an  open 
declaration,  a  public  advertisement  by  the  carrier,  that  such  a 
delivery  should  of  itself  be  deemed  an  acceptance  by  him,  and 
to  permit  him  to  set  up  against  those  who  had  been  thereby  in- 
duced to  omit  it,  the  want  of  the  formality  of  an  express  notice 
which  had  been  thus  waived,  would  be  sanctioning  injustice 
and  fraud."  -     But  where  the  goods  were  loaded  into  a  car 

iFt.  Worth  &  D.  R  Co.  v.  Martin,  And  it  has  been  lield  that  an  agree- 

12  Tex.  Civ.  App.  464.  ment  to  receive  goods  for  transporta- 

2  Montgomery,  etc.  R.  Co.  v.  Kolb  tion  deposited  at  a  particular  place, 

et  al..  73  Ala.   896-405,  40  Am.   Rep.  namely,  upon  the   carrier's   private 

54.  ISAm.  &Eng.  R.  Cas.  512;  Hutch,  wharf,  would  be   implied   where  it 

on   Car.,  sec.  90.     The  above,  taken  has  become  a  constant  practice  and 

from   the  opinion   of   the    court,  is  usage  to  receive  goods  for  transporta- 

quoted  from  Hutchinson  on  Carriers,  tion  by  the  carrier,  and  take  charge 

o96 


CH.  III.]  ESSENTIALS    THAT    FIX    LIABILITY.  [§§  433,  434. 

standing  on  a  side-track,  by  the  owner,  who  was  desirous  of 
shipping  them,  it  was  held  not  to  constitute  a  deliver}^  to  the 
railroad  company,  where  the  station  agent,  being  notified 
thereof,  declined  to  ship  the  goods,  there  being  no  custom  or 
regulation  of  tbe  railroad  company  making  such  loading  into 
the  company's  car  a  delivery.^ 

§  433.  Actual  notice  of  deposit  of  goods. —  As  a  general 
rule,  however,  if  there  is  no  custom  or  usage  which  might  be 
said  to  govern  the  delivery  of  the  property  for  shipment  as 
mentioned  in  the  previous  section,  notice  of  the  delivery  of  the 
property,  if  delivered  at  some  other  place  than  that  fixed  and 
required  by  the  rules  and  regulations  of  the  comjiany,  must  be 
given  to  the  carrier  or  his  agent,  and  his  acquiescence  in  such 
delivery  received,  otherwise  a  deposit  of  the  goods  at  an  un- 
usual place,  as  on  the  platform,  or  loading  them  in  a  railroad 
car,  or  depositing  them  upon  the  wharf  instead  of  the  place 
designated  by  the  company,  would  not  be  held  to  be  a  delivery.-' 

§  434.  Time  of  delivery. —  The  time  of  delivering  the  goods 
must  be  at  a  reasonable  hour,  and  generally  in  conformity  with 
the  requirements  of  the  rules  and  regulations  of  the  carrier,if  any. 
Good  sense  and  business  methods  dictate  that  the  time  the  car- 
rier should  be  compelled  to  receive  freight  for  shipment  would 
depend  very  largely  upon  the  time  of  the  running  of  its  trains, 
the  departure  of  its  boats  or  other  vehicles  for  transporting  the 
goods.  Generally,  however,  it  may  be  said  that  the  freight 
should  be  delivered  within  customary  business  hours,  and  if 
for  transportation  upon  any  particular  boat  or  train,  at  a  rea- 
sonable time  before  its  departure.  All  this  is  subject,  however, 
to  the  reasonable  rules  and  regulations  of  the  carrier,  modified, 
as  we  have  seen,  by  custom  and  usage  that  have  become  well 
known  and  understood,  and  seem  to  have  been  accepted  b}^  the 
carrier.  Where  the  shipper  delivered  the  freight  to  be  carried 
during  a  storm  which  afterward  resulted  in  its  injury,  it  was 

of  the  property  so  deposited  without  313,  41  Iowa,  410;  Galeua,  etc.  R.  Co. 

any  express  notice  of  such  deposit,  v.  Rae,  18  111.  488,  68  Am.  Dec.  574. 

Marriam  v.  Hartford,  etc.  R.  Co.,  20  2  Packard  v.  Getman,  6  Cow.  (N.  Y.) 

Conn.  354.  758,  16  Am.  Dec.  475,  4  Wend.  615; 

1  Evansville  &  T.  H.  R.  Co.  v.  Keith.  Grosvenor  v.  N.  Y.  Cent.  R.  Co..  39 

8Ind.  App.  57,  5  N.  E.  296;  Capehart  N.  Y.  34;  Salinger  v.  Simmons,   57 

V.  Granite  Mfg.  Co., 97  Ala.  353;  Union  Barb.  513;  III  Cent.  R.  Co.  v.  Smyser, 

Pac.   R.  Co.  V.  Hepner,  3  Colo.  App.  38  111.  354,  87  Am.  Dec.  301. 

897 


§  435.]  CARRIERS.  [part    V. 

held  that  the  shipper  should  not  be  held  guilty  of  contributory 
negligence  if  the  carrier  consented  to  receive  the  goods.  What- 
ever objection  he  might  have  made  was  waived,  and  he  became 
responsible  for  the  security  of  his  goods  from  the  time  of  such 
acceptance.^ 

§  435.  By  whom  must  delivery  be  made  and  to  whom. — 
A  good  delivery  of  the  goods  for  shipment  may  be  made  to  the 
common  carrier  by  the  owner,  a  duly  authorized  agent,  or  an}'" 
person  to  whom  he  has  delivered  the  possession  and  control  of 
the  property  with  all  the  indicia  of  ownership.  Apparent  au- 
thority, as  w^ell  as  actual  authority,  may  also  be  relied  upon  by 
the  carrier  in  such  cases.  That  principle  of  agency,  too,  that 
the  agent  is  authorized  to  exercise  all  the  powers  necessary  to 
affect  the  purpose  of  the  agency,  may  be  successfully  invoked 
by  the  carrier.  And  so  it  has  been  held  that  "  authority  to 
deliver  goods  to  a  common  carrier  for  transportation  includes 
all  the  necessary  and  usual,  means  of  carrying  it  into  effect.  It 
can  only  be  executed  by  obtaining  the  consent  of  the  carrier 
to  receive  them,  and  the  agent  is  therefore  authorized  to  stip- 
ulate for  the  terms  of  transportation."  Where  a  cartman,  em- 
ployed b}^  persons  from  whom  a  valuable  mirror  had  been  pur- 
chased, and  who  agreed  to  forward  it  by  the  defendant  carrier, 
signed  a  contract  for  the  owner  as  agent,  limiting  the  liability 
of  the  carrier  in  case  the  mirror  was  broken,  the  persons  from 
whom  the  purchase  was  made  consenting  thereto,  it  was  held 
that  the  defendant,  by  reason  of  the  contract,  was  not  liable, 
and  that  the  authority  to  sign  was  incident  to  the  authority  to 
ship.'-  In  Hayes  v.  Campbell^  it  was  held  that  where  there  are 
facts  brought  home  to  the  carrier  showing  that  the  person 
shipping  the  property  is  a  mere  agent  and  not  the  owner, 
the  carrier  is  put  upon  inquiry  as  to  the  authority  of  and  the 
extent  of  the  powers  of  such  agent.  Where  wool  was  deliv- 
ered at  the  station  of  a  common  carrier  in.-  sacks  marked  with 
the  name  and  address  of  the  owner,  whose  place  of  business 
was  in  Boston,  and  with  the  initial  of  the  agent  who  had  pur- 
chased it,  with  the  weights  and  numbers  upon  all  the  sacks,  and 

1  New  Brunswick  Steamboat  &  498;  Squire  et  al.  v.  N.  Y.  Cent.  R.  Co., 
Trans.  Co.  v.  Tiers,  24  N.  J.  L.  697,  64  98  Mass.  239;  York  Co.  v.  Cent.  R  R. 
Am.  Dec.  394.  Co.,  3  Wall.  (U.  S.)  107,  113. 

2XeIson  V.  H.   R.  R  Co.,  48  N.  Y.         3  63  Cal.  143. 

398 


<!H.  III.]  ESSENTIALS    THAT    FIX    LIABILITr.  [§  436. 

it  appeared  that  previous  shipments  bad  been  made  by  the 
■same  agent  at  the  same  place  to  the  same  parties  during  the 
same  season,  and  that  when  said  agent  delivered  this  wool  he 
piled  it  into  one  part  of  the  building  and  pointed  it  out  to  the 
carrier's  agent,  saying  that  that  pile  of  avooI  is  for  Boston,  it 
was  held  thattliis  constituted  a  good  and  suificient  delivery.^ 

§  436.  To  whom  must  delivery  be  made. —  It  is  a  gen- 
eral rule  that  to  render  a  common  carrier  liable  for  goods  to 
be  carried  by  him,  the  .fact  that  the  goods  were  actually  de- 
livered to  him,  or  to  some  person  authorized  to  act  in  his 
behalf,  must  be  established.  This  is  important,  because  his  lia- 
bility attaches  only  from  the  time  he  accepts  the  goods  to  be 
carried,  or  is  legally  bound  to  accept  them.  "  To  complete  the 
delivery  of  goods  to  the  carrier  it  is  essential  that  the  pr'operty 
be  placed  in  a  position  to  be  cared  for,  and  under  the  control 
■of  the  carrier  or  his  a^ent  with  his  knowledge  and  consent."  ^  It 
is  a  fact  commonly  known  and  understood  that  carriers  gener- 
ally act  through  their  agents,  and  the  question  often  arises, 
who  are  the  duly  authorized  agents  of  the  carrier?  To  deter- 
mine this  question  we  are  to  apply  the  ordinar}''  rules  of  the 
law  of  agency.  The  shipper  is  not  bound  to  make  a  full  in- 
vestigation in  order  to  determine  whether  one  is  an  agent  of 
the  carrier  company.  If  the  person  has  apparent  authority,  if 
he  is  in  the  place  of  the  carrier,  acting  for  him  in  the  receiving 
of  freight  and  sending  it  forward,  so  engaged  that  to  the  or- 
dinarily prudent  business  man  it  would  appear  that  he  had 
authority  to  act  and  was  acting  for  and  with  the  knowledge 
of  the  company,  it  is  sufficient.  If  the  person  is  accustomed 
to  act  for  the  company,  and  has  been  so  doing  for  a  consider- 
able time,  so  long  and  so  often  that  it  could  be  reasonably  in- 
ferred that  the  carrier  must  know  that  he  is  acting,  he  will  be 
held  to  have  authority  to  act.  Where  a  package  for  an  ex- 
press company  was  delivered  to  a  person  in  charge  at  the  rail- 
road depot  W' ho  had  been  accustomed  to  receive  such  packages 
for  the  company,  it  M'^as  held,  in  an  action  against  the  company 
for  failure  to  deliver  the  package,  that  the  delivery  to  the  com- 
pany was  sufficient.^     And  where  packages  were  delivered  to 

1  Nichols  V.  Smith,  115  Mass.  332.        3  Express  Co,  v.  Black,  8  Tex.  Civ. 
i^Grosvenor  v.  N.  Y.  Cent.  R.  Co.,    App.  363. 
39  N.  Y.  34. 

399 


§  437.]  CAREIEKS.  [part    V. 

an  expressman  in  charge  of  an  express  wagon  bearing  the  name 
of  the  express  company,  the  wagon  being  one  that  called  at 
plaintiff's  place  every  night  for  goods  to  be  delivered,  the  ex- 
pressman signing  a  receipt  on  a  form  used  by  the  company,  it 
was  held  that  the  expressman  had  authority  to  act  for  the 
company  in  receiving  the  goods,  and  the  delivery  was  suffi- 
cient.^ 

§  437.  Facts  relied  upon  to  show  apparent  authority 

must  be  clear. —  "While  apparent  authority  is  usually  sufficient, 
the  facts  upon  which  it  is  claimed  must  be  clear  and  conclu- 
sive and  of  such  a  nature  as  to  convince  the  ordinarily  prudent 
business  man  that  the  authority  is  really  possessed  by  the  per- 
son acting  as  the  agent  of  the  carrier.  If  the^  facts  relied  upon 
are  not  sufficient  to  support  such  a  belief,  then  delivery  to  one 
not  having  authority  would  not  be  sufficient.-  The  delivery 
must  be  to  the  carrier  or  to  an  agent  having  actual  or  apparent 
authority  to  act,  and  not  to  a  mere  servant,  or  a  deck  hand 
upon  a  steamboat,  or  a  brakeman  upon  a  railroad  train,  or  a 
switchman  at  the  station,  for  these  persons  have  no  authority 
to  receive  goods  for  shipment.^     Where  one  delivered  a  coat 

1  Lewis  V.  Vanhorn,  53  N.  Y.  S.  446,  receipted  for  the  goods  and  took 
24  Misc.  Rep.  765.  And  in  Goodrich  them  away.  The  receipt  thus  signed 
V.  Thompson,  44  N.  Y.  824,  it  was  was  in  a  book  of  blanks  which  the 
held:  "  If  an  agent  (a  clerk),  author-  company  had  furnished  to  plaintiff, 
ized  by  the  general  mode  in  which  At  the  time  of  this  delivery  a  wagon 
the  business  of  his  principals  (for-  was  seen  across  the  street  on  which 
warders)  is  conducted,  to  make  a  gen-  the  name  of  the  company  appeared, 
eral  contract  in  the  ordinary  course  but  the  man  was  not  seen  to  come 
of  the  business,  assumes  to  make  from  it  or  return  to  it,  and  it  was  not 
a  special  contract  with  a  third  per-  shown  to  have  belonged  to  the  corn- 
son,  who  has  no  notice  of  any  limita-  pany.  The  man  was  not  the  one  who 
tion  of  the  authority  of  such  agent,  usually  called  for  goods,  and  had 
the  principals,  as  between  themselves  never  been  seen  before  at  plaintiff  s 
and  such  third  person,  are  bound  by  store.  Held,  in  an  action  to  recover 
the  contract  so  made."  the  value  of  the  goods,  which  were 

2  Abram  v.  Piatt,  53  N.  Y.  S.  153,  never  delivered,  that  the  evidence 
23  Misc.  637.  It  appeared  that  "  the  failed  to  show  that  the  man  in  ques- 
plaintiff,  a  regular  customer  of  the  tion  was  defendant's  agent,  and  that 
defendant  express  company,  exhib-  complainant  should  have  been  dis- 
ited  the  usual  card  indicative  of  his  missed." 

wish  to  ship  goods,  and  in  apparent        ^  Young  v.  Can.  Pac.  R.  Co.,  1  Mani- 
response  thereto  a  man  wearing  a    toba  L.  205:  Butler  v.  Hudson  River 
badge  with  the  name  of  the  defend-    R  Co.,  3  E.  D.  Smith  (N.  Y.),  571. 
ant  company  entered  plaintiff's  store. 

400 


CH.  III.]  ESSENTIALS    THAT    FIX    LIABILITY.  [§§  438,  439. 

to  a  stage  driver  to  be  carried  and  delivered  to  another  place 
and  asked  that  it  be  put  in  the  waybill,  but  the  driver  ob- 
jected, that  he  had  no  authority  to  do  so,  but  would  carry  it 
to  the  next  station  and  have  the  agent  of  the  company  put  it 
in  the  bill,  it  was  held  that  this  was  not  a  sufficient  delivery 
to  the  carrier,  and  that  he  could  not  be  held  liable  for  the  loss 
of  the  coat.^ 

§  438.  Agents  authorized  to  receive. —  It  may  be  said  that 
the  agents  that  are  ordinarily  authorized  to  receive  freight  for 
the  common  carrier  for  transportation  are  officials  at  railroad 
stations;  such  as  station  agents,  receiving  clerks  at  the  freight- 
room,  draymen  of  railroad  companies,  express  companies  or 
steamboat  companies  who  are  employed  to  solicit  or  receive 
freight  at  the  business  houses  or  other  places  about  the  city  or 
town  where  they  do  business;  agents  of  steamboat  companies, 
or  shipping  clerks  at  their  offices  and  freight  rooms,  captains 
or  mates  of  vessels  where  the  custom  of  the  company  has  been 
to  allow  them  to  receive  shipments,  baggage-masters  of  con- 
necting carriers,  and  officers  and  agents  of  such  carriers,  and 
servants  of  the  different  carrier  companies  employed  by  such 
companies  to  solicit  and  receive  freight  for  transportation  for 
their  respective  carriers.^ 

§  439.  Constructive  delivery. —  Thus  far  we  have  treated  of 
actual  delivery.  Delivery  may  be  actual  or  constructive,  but 
constructive  delivery  of  goods  so  as  to  bind  the  carrier  and  sub- 
ject him  to  liability  for  their  loss  or  injury  will  only  be  recog- 
nized as  sufficient  in  cases  where,  by  the  constant  and  usual 
practice  and  usage  of  the  carrier,  such  kind  of  delivery  has  been 
permitted.  If  it  has  been  the  usual  practice  of  the  carrier  — 
for  example,  to  receive  goods  delivered  for  shipment  that  are 
left  by  the  shipper  upon  the  platform  of  their  depot,  or  the 
dock  from  which  their  ships  are  loaded,  from  all  or  from  cer- 
tain of  their  patrons,  then  such  a  delivery  would  be  good  and 
sufficient  to  bind  the  carrier.  But  if  there  is  no  such  custom  or 
usage  or  continued  practice  from  which  such  acquiescence  of 

J  Blanchard    v.    Isaacs,     '6    Barb,  ity  to  receive  goods  for  transporta- 

(N.  Y.)388;  Fisher  v,  Geddes,  15  La.  tion.     Porter  v.  Chicago  R  Co.,  41 

Ann.  14.     In  Trowbridge  v.  Chapin,  Iowa,  358. 

23  Conn.  595,  a  trunk  was  delivered  -  Witbeck    v.    Schuyler,   44   Barb, 

to  one  who  was  shown  to  be  a  deck  (N.  Y.)  469;  State  v.  Frew,  24  W.  Va. 

hand.     It  was  held  that  the  servants  424. 
of  defendant  had  no  general  author- 

26  401 


439.] 


OARRIEES. 


[PAET   V. 


the  carrier  in  lilie  cases  can  reasonably  be  inferred,  then 
such  delivery  will  not  be  sufficient.^  Where  a  warehouse  re- 
ceipt for  the  goods  was  delivered  to  the  carrier,  and  the  goods 
to  be  transported  by  him  were,  before  being  removed  from 
the  warehouse,  destroyed  by  fire,  it  was  held  not  to  be  such  a 
delivery  as  would  create  the  extraordinary  liability  which 
usually  attaches  to  the  common  carrier.^ 


1  Witzler  v.  Collins,  70  Me.  290-299, 
35  Am.  Rep.  327,  held  "  there  can  be 
no  constructive  delivery  of  goods  so 
as  to  bind  the  owner  for  their  car- 
riage except  at  such  places  where 
by  constant  practice  and  usage  they 
have  received  property  left  for  trans- 
portation. That  can  only  be  when 
by  the  constant  practice  and  usage 
of  the  carrier  he  receives  property 
left  for  transportation  at  a  particular 
place."  Citing  1  Chitty  on  Car.,  686, 
note. 

2  Stewart,  Ralph  &  Co.  v.  Gracy  & 
Bra,  93  Tenn.  314-320.  The  court  say: 
"  A  contract  with  a  common  carrier 
for  the  transportation  of  i^roperty 
being  one  of  bailment,  it  is  necessary, 
in  order  to  charge  him  for  its  loss, 
that  it  be  delivered  to  and  accepted 
by  him  for  that  purpose.  But  such 
acceptance  may  be  actual  or  con- 
structive. If,  for  instance,  the  prop- 
erty be  deposited  at  a  designated 
station,  in  {accordance  with  a  conven- 
tional arrangement  between  the  par- 
ties in  respect  to  the  mode  of  deliv- 
ery, or  if  it  be  deposited  with  a  third 
person  who  is  authorized  by  the  car- 
rier to  execute  a  bill  of  lading  in  the 
name  of  the  carrier,  then  such  mode 
of  delivery  is  as  complete  as  if  the 
property  had  been  actually  deposited 
with  the  carrier."  To  this  effect  was 
Deming  v.  Merchants',  etc.  Co.,  6 
Pick.  306.  See  also  Hutchinson  on 
Carriers,  sees.  1,  79,  82;  Watson  v. 
Railroad  Co.,  9  Heisk.  225."  Mis- 
souri Pac.  R.  Co.  V.  McFadden,  154 
U.  S.  160:  "The  elementary  rule  is 
that  the  liability  of  the  common  car- 
rier depends  upon   the  delivery  to 


him  of  the  goods  which  he  is  to  carry. 
This  rule  is  thus  stated  in  the  text- 
books: 'The  liability  of  a  carrier  be- 
gins when  the  goods  are  delivered  to 
him  or  his  proper  servant  authorized 
to  receive  them  for  carriage.'  Red- 
field  on  Carriers,  80.  '  The  duties  and 
the  obligations  of  the  common  car- 
rier with  respect  to  the  goods  com- 
mence with  their  delivery  to  him, 
and  this  delivery  must  be  complete, 
so  as  to  put  upon  him  the  exclusive 
duty  of  seeing  to  their  safety.  The 
law  will  not  divide  the  duty  or  the 
obligation  between  the  carrier  and 
the  owner  of  the  goods.  It  must  rest 
entirely  upon  the  one  or  the  other; 
and  until  it  has  become  imposed 
upon  the  carrier  by  a  delivery  and 
acceptance  he  cannot  be  held  re- 
sponsible for  them."  Hutchinson  on 
Carriers,  82.  This  doctrine  is  sanc- 
tioned by  a  unanimous  course  of 
English  and  American  decisions. 
Schooner  Freeman  v.  Buckingham, 
18  How.  182;  The  Lady  Franklin,  8 
Wall.  325;  The  Delaware.  14  Wall. 
579;  Pollard  v.  Vinton,  105  U.  S.  7; 
Iron  Mountain  Ry.  Co.  v.  Knight,  123 
U.  S.  79;  Friedlander  v.  Texas  & 
Pac.  R.  Co.,  130  U.  S.  423;  St.  Louis, 
Iron  Mountain,  etc.  R  Co.  v.  Com- 
mercial Union  Ins.  Co.,  139  U.  S.  233; 
Barron  v.  Eldridge,  100  Mass.  455; 
Moses  V.  Boston  &  Maine  R,  Co.,  4 
Fost.  (24  N.  H.)  71;  Brind  v.  Dale.  8 
Car.  &  P.  207;  Seway  v.  Holloway.  1 
Ld.  Raym.  46;  Buck  man  v.  Levi,  3 
Camp,  414;  Leigh  v.  Smith,  1  Car.  & 
P.  638;  Grant  v.  Norway,  10  C.  B. 
665;  Hubbersty  v.  Ward,  8  Excli. 
330.     Indeed,  the  citations  might  be 


403 


CH.  in.]  ESSENTIALS    THAT    FIX    LIABILITY.  [§  440. 

§  440.  Rules  permitting  constructive  delivery  must  be 
applied  with  great  caution. —  The  aim  and  object  of  the  law 
is  to  measure  out  to  both  the  public  and  the  carrier  equal  and 
exact  justice.  The  public  are  to  be  served  and  furnished  ample 
accommodations,  at  least  to  the  extent  of  the  ability  of  the 
carrier;  on  the  other  hand,  the  carrier  should  not  be  imposed 
upon  by  putting  upon  him  unreasonable  requirements,  or  sub- 
jecting him  to  liability  by  slack  and  unbusiness-like  ways  on 
the  part  of  the  shipper.  As  we  have  seen,  constructive  deliv- 
ery depends  very  materially,  if  not  entirely,  upon  the  usage, 
custom  and  usual  course  of  business  of  the  shipper  and  the 
carrier.  Has  it  been  the  long-continued,  accepted  course  of 
business  in  the  particular  case  to  so  deliver  the  freight,  and 
has  it  been  accepted  by  the  carrier  ?  Has  the  particular  serv- 
ant been  allowed  to  so  receive  the  freight  for  the  carrier  ?  Has 
freight,  by  th^  long,  uninterrupted  usage  of  the  carrier  with 
the  particular  shipper  or  with  the  public,  been  received  and 
shipped  when  left  at  the  particular  place,  by  the  roadside,  or 
on  the  platform  or  dock,  or  when  delivered  to  the  captain  or 
mate?  If  these  questions  can  be  affirmatively  answered  ac- 
cording to  the  proofs,  then,  as  we  have  seen,  the  delivery  is 
sufficient.  But  great  caution  should  be  observed  in  determin- 
ing these  questions.^ 

multiplied  indefinitely.     Whilst  the  court  say:  "It  is  not  claimed  that 

authorities  may  differ  upon  the  point  defendant  would  be  liable  vvitliout  a 

of  what  constitutes    delivery  to  a  delivery,  either  actual  or  construct- 

carrier,  the  rule   is  nowhere  ques-  ive,  of  the  property  to  its  agent  or 

tioned  that  when  delivery  has  not  servant.     That  a    delivery  may  be 

been  made  to  the  carrier,  but,  on  the  made  at  the  proper  place  of  receiv- 

contrary,  the  evidence  shows  that  ing  such  baggage,  under  the  express 

the  goods  remained  in  the  possession  assent  or  authority  of  the  carrier, 

of  the  shipper  or  his  agent  after  the  witliout  notice  to  its  emi)loyees,  will 

signing  and  the  passing  of  the  bill  of  not,  we  presume,  be  disputed.     It  is 

lading,  the  carrier  is  not  liable  as  equally  clear  upon  principle  that  this 

carrier  under  the   bill.     Of  course,  assent  may  be  presumed  from   the 

then,  the  carrier's  liability  as  such  course  of  business  or  custom  of  the 

will  not  attach  on  issuing  the  bill  in  carrier.    Upon  evidence  of  this  char- 

a  case  where  not  only  is  there  a  fail-  acter,  contracts  based  upon  business 

ure  to  deliver,  but  there  is  also  an  transactions   are    constantly   estab- 

understanding  between  the  parties  lished.     The  citation  of  authority  is 

that  delivery  shall  not  be  made  till  not  required  to  support  this  position, 

a  future  day,  and  that  the  goods  See  Marriara  v.  Hartford  &  N.  H.  R. 

until  then  shall  rethain  in  the  cus-  Co.,  20  Conn.  354." 
tody  of  the  shipper."     In  Green  v.        i  Hutchinson  on  Carriers,  sec.  93, 
Milwaukee  R.  Co.,  38  Iowa,  100,  the 

403 


CHAPTER  ly. 


CARRIERS  OF  GOODS  — FIXING  THE  LIABILITY  OF  THE  CARRIER, 


§  441.  The  object  of  the  chapter. 

442.  What  must  the  carrier  receive 

and  carry. 

443.  Reasonable  regulations. 

444  '■  Other  legal  excuses  for 

refusing  to  receive  goods. 

445.  Carrier  may  fix  time  and 

place  for  receiving. 

446.  That  the  carrier  has  no  facil- 

ities for  cari'ying  the  goods. 

447.  Extraordinary  occasions. 

Press  of  business. 

448.  Carrier  not  permitted  to  arbi- 

trarily refuse  to  receive  and 
ship. 


§  449.  Equitable  proceedings  to  en- 
force the  receiving  and  ship- 
ping of  freight. 

450.  Acceptance  by  the  carrier. 

451.  When    delivery  and    accept- 

ance completed. 
453.  A  bill  of  lading  or  receipt  not 
a  requisite  to  bind  carrier. 

453.  Action  for  refusal   to  accept 

and  transport  goods. 

454.  Tender  of  the  goods  and  pay- 

ment of  freight. 

455.  Who  may  sue. 

456.  The  liability. 

457.  Duty  to  provide    proper  ve- 

hicles. 


§  441.  The  object  of  the  chapter. —  The  goods  being  de- 
livered or  offered  by  the  shipper  for  carriage  to  the  carrier 
suggests  the  questions  as  to  what  must  he  receive,  and  in  case  of 
refusal  how  can  the  duty  be  enforced.  The  discussion  of  these 
questions  is  the  object  of  this  chapter. 

§442.  What  must  the  carrier  receive  and  carry. —  The 
general  rule  is  that  it  is  the  duty  of  the  common  carrier  to  re- 
ceive the  goods  and  property  of  all  who  offer  them  for  carriage 
and  comply  with  the  usual  requirements.  This  general  rule, 
however,  is  subject  to  many  limitations,  some  of  which  have 
already  been  mentioned,  notably  one,  that  the  goods  and  prop- 
erty must  be  of  the  kind  that  is  within  the  line  of  business  in 
which  the  carrier  is  engaged,  or  in  the  line  of  goods  or  prop- 
erty he  holds  himself  out  to  carry,  or  which,  from  all  the  cir- 
cumstances, the  carrier  is  reasonably  expected  by  the  public  to 
carry.  He  is  a  quasi-.puhlic  servant,  subject  to  the  demands  of 
the  public,  and  the  law  and  public  policy  will  call  upon  him  to 
at  all  times  respond  to  such  demands  if  within  the  scope  and 
line  of  his  business  as  a  carrier.    But  for  all  he  is  thus  subjected 

404 


■CH.  IV.]  FIXING    LIABILITY.  [§§  443,  444. 

to  the  demands  of  the  public,  and  for  all  he  is  thus  bound  to 
carry,  as  a  general  rule,  all  of  the  freight  or  property  that  is 
tendered  to  him  for  carriage  and  that  is  within  the  line  of  his 
particular  business,  there  are  exceptions  and  limitations  which 
are  suggested  by  public  policy  as  well  as  by  the  common  judg- 
ment of  men,  and  to  meet  some  of  these  exceptions  and  limita- 
tions the  carrier  is  permitted  to  make  reasonable  regulations 
as  to  the  carriage  of  goods  that  are  presented  to  him  for  trans- 
portation. 

§  443. Reasonable  regulations, —  Eeasonable  rules  and 

regulations  may  be  made  applicable  to  all  departments  of 
the  business  of  the  common  carrier.  For  example,  it  has  been 
held  that  he  may  make  regulations  as  to  the  manner  in  which 
the  goods  presented  for  shipment  shall  be  packed  or  prepared 
for  shipment,  and  this  rule  seems  entirely  reasonable,^  for  it  is 
not  difficult  to  understand  that  it  would  be  necessary  and  only 
just  to  the  carrier  that  certain  kinds  of  goods  should  be  prop- 
erly prepared  for  shipment.  For  example,  the  carrier  may  re- 
quire that  crockery  or  hardware  shall  be  crated;  that  hay  shall 
not  be  shipped  loose  but  shall  be  baled ;  that  furniture  or  ma- 
chinery shall  be  put  in  racks;  that  money  shall  be  put  in  sealed 
packages;  that  all  goods  and  property  shipped  shall  be  prop- 
erly marked  and  directed  to  the  consignee  and  to  the  place  of 
destination,  and  that  animals  shall  not  be  transported  except 
there  be  an  attendant  to  care  for  them  en  route.  And  so  it 
follows  that  the  carrier  may  refuse  to  receive  such  like  prop- 
erty for  transportation  unless  the  shipper  has  complied  with 
these  reasonable  regulations.^ 

§  444.  Other  legal  exenses  for  refusing  to  receive 

goods. —  And  so  a  carrier  may  refuse  to  receive  goods  for  ship- 

1  Hutchinson   on   Carriers,  §  113;  in  the  same  case  it  was  further  held 

Union  Ex.  Co.  v.  Graham,  2G  Ohio  St.  that  "  wliere  one  whom  a  steamboat 

595.  carrier  had  permitted  to  act  as  its 

'  In  Seasongood  v.  Tenn.  &  O.  Tr.  agent  in  receiving  freight  for  such 

Co.,  54  S.  W.  193,  it  was  held  "that  a  a  length  of  time  as  to  justify  the  be- 

steamboat  carrier  was  liable  for  tiie  lief  that  he  was  an  authorized  agent 

loss  by  theft  of  goods  temporarily  wrongfully  refused  to  receive  freiglit 

stored  in   its  warehouse    upon    its  offered,   the  carrier  cannot    escape 

wrongful  refusal  to  receive  them  for  liability  on  the  ground  that  he  had 

shipment,  the  shipper  having  had  no  no  authority  to  receive  freight  for 

reasonable   opportunity  to  make   a  shipment." 
safer  disposition  of  the  goods."   And 

405 


§  444.] 


CAEEIERS. 


[part  V. 


merit  where  the  packages  lead  him  to  suspicion  that  they  may 
contain  dangerous  or  explosive  articles  which  would  expose 
the  carrier  or  his  servants  to  danger,  if  the  shipper  refuse  to 
allow  the  carrier  to  make  an  examination  and  to  satisfy  him 
that  the  goods  are  fit  for  shipment.  Indeed,  it  is  held  to  be 
the  duty  of  the  carrier  under  such  circumstances  to  satisfy 
himself  that  the  goods  are  not  of  a  dangerous  kind,  unfit  and 
dangerous  to  be  handled  by  the  servants  of  the  carrier.^  So  if 
the  goods  are  infected  with  contagious  diseases,  or  if  to  receive 
or  transport  them  would  -occasion  a  riot,  or  where  the  prop- 
erty is  such  that  the  law  prohibits  its  being  carried,^  or  where 
the  goods  are  perishable  and  the  carrier  has  no  means  of 
immediate  transportation,  in  such  cases  he  may  refuse  to  carry 
the  property,  but  should  notify  the  shipper  that  he  cannot 
carry  it,  that  he  may  ship  it  by  some  other  carrier,  or  dispose 
of  it  as  he  sees  fit.'  And  so  it  has  been  held  that  where  the 
line  of  road  was  under  military  control,  the  carrier  would  be 
excused  from  receiving  freight  to  be  transported  over  it,  as  he 
does  not  control  the  road;*  'or  whenever  for  any  reason  the 


1  Nitroglycerine  Case,  15  Wall. 
(U.  S.)  524;  Boston,  etc.  R.  Co.  v. 
Shanly,  107  Mass.  568.  In  the  Nitro- 
glycerine Case,  above  cited,  the  court 
say :  "  The  case  cited  from  the  com- 
mon pleas  recognizes  the  right  of  the 
carrier  to  refuse  to  receive  packages 
offered  without  being  made  ac- 
quainted with  their  contents  when 
there  is  good  ground  for  believing 
that  they  contain  anything  of  a  dan- 
gerous character.  It  is  only  when 
such  grounds  exist  arising  from  the 
appearance  of  the  package  or  other 
cix-cumstances  tending  to  excite  his 
suspicion  that  the  carrier  is  author- 
ized, in  the  absence  of  any  special 
legislation  upon  the  subject,  to  re- 
quire a  knowledge  of  the  contents  of 
the  packages  offered  as  a  condition  of 
receiving  them  for  carriage.  Crouch 
V.  London  &  Northwestern  R.  Co.,  9 
Exch.  556;  Brass  v.  Braitland,  6  El. 
&  Bl.  485." 

2  Where  by  statute  the  importation 
of  goods    of    a  certain  character  is 


prohibited,  as,  for  example,  intoxi- 
cating liquors,  the  carrier  may  refuse 
to  receive  them,  and  it  has  been  held 
that  while  the  carrier  was  made  lia- 
ble by  statute  for  carrying  such  ar- 
ticles, it  would  be  no  answer  for  him 
to  allege  that  he  had  no  right  to  re- 
fuse to  carry  goods  tendered.  State 
V.  Goss,  59  Vt.  266,  59  Am.  Rep.  706. 
In  Milwaukee  Malt  Extract  Co.  v. 
Chicago,  etc.  R.  Co.,  73  Iowa,  98,  it 
was  held  that  where  the  plaintiff  had 
tendered  to  defendant  for  shipment 
a  known  intoxicating  beverage  which 
was  labeled  beer,  and  which  the  com- 
pany refused,  because  of  the  laws  of 
Iowa  which  prohibited  the  importa- 
tion of  intoxicating  liquors,  it  was 
held  that  the  action  could  not  be 
maintained  for  such  refusal,  al- 
though the  beverage  may  not  have 
been  intoxicating,  the  shipment  hav- 
ing been  marked  beer. 

3  Tierney  v.  New  York  Cent.  R  Ca, 
76  N.  Y.  305. 

*  Illinois  Cent.  R  Ca  v.  Cobb,  64 


406 


CH.  IV.]  FIXING    LIABILITY.  [§§  445,  446. 

goods  are  unfit  for  transportation,  or  where  the  shipper  re- 
fuses to  pay  the  compensation  for  transportation.  But  should 
the  carrier  accept  the  goods  for  transportation  in  cases  where 
he  might  properly  have  refused  to  receive  them,  he  will  be  held 
to  have  waived  his  reasonable  and  legal  excuse  for  not  receiving 
them,  and  thus  become  liable  for  any  loss  of  or  injury  to  the 
property,  the  same  as  in  case  of  other  goods;  in  other  words, 
he  will  be  held  to  have  waived  his  special  exemption  from  lia- 
bility.^ 

§  445.  Carrier  may  fix  time  and  place  for  receiving. 

When  the  goods  have  been  received  by  the  carrier  for  immedi- 
ate transportation  the  extraordinary  liability  of  a  common  car- 
rier is  at  once  fixed  upon;  there  is,  therefore,  good  reason  for 
holding  that  the  carrier  should  fix  a  proper  time  and  place  for  the 
receiving  of  the  goods  and  for  releasing  him  from  any  liability 
in  case  the  goods  are  not  delivered.  It  is  therefore  considered 
to  be  a  reasonable  regulation  that  the  shipper  shall  offer  the 
goods  at  a  reasonable  time  and  place  fixed  by  the  carrier.-  And 
where  goods  are  not  so  offered,  and  such  reasonable  regula- 
tions not  complied  with,  the  common  carrier  is  not  liable  for 
loss  of  or  injury  to  the  goods. 

§  446.  That  the  carrier  has  no  facilities  for  carrying  the 
goods. —  From  the  definition  of  a  common  carrier  it  will  be 
noticed  that  this  limitation  is  recognized:  that  he  is  only  bound 
to  carr}'-  goods  to  the  extent  of  his  ability.  While  this  is  true, 
there  is,  however,  a  very  important  duty  laid  upon  the  carrier 
by  way  of  requiring  him  to  equip  himself  for  the  business  he 
has  in  hand;  he  must  furnish  equipment  reasonably  commen- 
surate with  the  well-understood  and  apparent  demands  upon  a 
carrier  operating  in  the  particular  locality  and  in  the  partic- 
ular line  of  goods  in  which  he  is  engaged.  The  railroad  oper- 
ating a  line  of  road  through  a  populous  manufacturing  and  agri- 
cultural country  must  have  equipment  that  is  reasonably  and 
properly  demanded  in  order  to  handle  the  shipments  of  freight 
from  such  a  country,  and  if  after  a  reasonable  time  has  elapsed 

111.  128;  Illinois  Cent.  R.  Co.  v.  tion  R.  Co.,  12  M.  &  W,  766;  Hutch. 
Schwartz,  i:i  111.  App.  490.  on  Car.,  sec.  117. 

1  The  David  &  Caroline,  5  Blatchf.  2  Cronkite  v.  Wells,  33  N.  Y.  247; 
(U.  S.)  266;  Piokford  v.  Grand  June-    Louisville  R.  Co.  v.  Fiannigan,  113 

Ind.  488. 
407 


§  447.]  CARRIEKS.  [part   V. 

the  carrier  fails  to  supply  such  equipment,  and  because  of 
this  a  shipper  is  damaged,  there  can  be  no  question  that  the 
carrier  would  be  liable  in  an  action  for  such  damage;^  and  it 
has  been  held  that  the  courts  may  compel,  by  mandamus,  the 
carrier  to  furnish  cars  and  facilities  for  the  shipment  of  freight 
and  property  tendered  for  shipment.  In  State  ex  rel.  etc.  v. 
Texas,  etc.  R.  Co?  it  was  held :  "  While  it  is  true  that  the  court 
has  no  legal  right  to  manage  a  railroad,  or  direct  the  details 
of  its  operation,  or  make  contracts  for  the  railroad  company,' 
it  may  issue  a  writ  of  mandamus  to  compel  it  to  perform  a  duty 
clearly  defined  under  the  law,"  And  therefore  may  compel  it  b}'' 
mandamus  to  furnish  cars  and  facilities  to  distribute  poles  along 
•  a^ telegraph  line  which  is  to  run  parallel  and  adjacent  to  the  right 
of  way  of  the  railroad  company. 

§  447.  Extraordinary  occasions  —  Press  of  business. 

It  is  the  ordinary  requirements,  and  not  the  extraordinary,  that 
measure  the  legal  duty  of  the  carrier  to  receive  and  transport 
the  goods  of  all  who  call  upon  him  and  offer  their  goods  for 
transportation.  It  has  been  said  that  "  the  amount  of  business 
ordinarily  done  by  a  railroad  is  the  only  proper  measure  of: 
its  obligations  to  furnish  transportation.  If  by  reason  of  a  sud- 
den and  unusual  demand  for  stock  or  produce  in  the  market, 
or  for  any  other  cause,  there  should  be  an  unexpected  influx  of 
business  to  the  railroad,  this  obligation  will  be  fully  met  by 
shipping  such  stock  or  produce  in  the  order  and  priority  of 
time  in  which  it  is  offered,  so  as  to  afford  a  reasonable  amount 
of  accommodation  for  all.  While  it  may  be  difficult  to  lay  down 
any  general  rule  upon  this  subject,  satisfactorily  accurately  in  its 
terms,  to  cover  all  business  that  may  possibly  occur,  still  it  can 
be  approximated  by  saying  that  its  means  of  transportation 
must  be  so  distributed  at  the  various  stations  for  receiving  pas- 
sengers and  freight  along  the  entire  line  of  road  as  to  afford  a 
reasonable  amount  of  accommodation  for  all."^  And  so  a  rail- 

iln  111.  Cent.  R.  Co.  v.  Cobb,  64111.  253  La.  An.  1850,  28  So.   284;  In- 

128,  it  was  held  that  the  company  man  v.  Railroad  Co.,  14  Tex.  Civ.  App. 

was  liable  for  a  delay  in  the  trans-  39. 

portation  of  goods  in  consequence  of  ^  Ballentine  v.  M.  N.  R  Co.,  40  Mo. 
lack  of  cars  or  other  facilities  unless  491-500.  In  Mich.  Cent.  R.  Co.  v.  Bur- 
it  could  show  good  cause  for  the  de-  rows,  33  Mich.  6,  it  appeared  that  the 
lay.  Chicago  R.  R  Co.  v.  Thrapp,  5  plaintiff  on  the  10th  of  November, 
111.  App.  503.  1871,  shipped  four  carloads  of  appies 

408 


CH.  IV.] 


FIXING    LIABILITY. 


[§  441 


road  company  which  is  required  to  satisfactorily  meet  the  or- 
dinary demands  upon  it,  to  receive  and  carry  the  freight  with 
out  delay  that  is  offered,  is  not  bound  to  receive  freight  which 
it  cannot  carry  because  of  a  temporary  press  and  demand  of 
business  occasioned  by  some  unusual  and  unlocked  for  occur- 
rence  which   the   carrier    could   not   prevent.     The   carrier- 


consigned  to  agents  at  Minneapolis; 
there  the  apples  were  consigned  to 
the  next  carrier,  November  17th,  and 
arrived  in  Minneapolis  November 
22d,  injm-ed  by  frost  while  in  transit. 
The  action  was  for  damages.  It  also 
appeared  that  the  great  Chicago  fire 
occurring  October,  1871,  destroyed 
tiie  tracks,  freight  houses,  depot  and 
other  facilities  of  the  plaintiff  and 
brought  about  a  great  demand  for 
the  shipment  of  goods  for  relief  of 
the  Chicago  fire  sufferers,  and  that 
these  shipments  were  given  prefer, 
ence  to  any  other  shipment:  that  on 
account  of  this  the  road  was  greatly 
blocked  by  an  accumulation  ■  of 
freight,  and  for  this  reason  the 
freight  in  question  was  delayed.  The 
court  held:  "The  law  is  not  so  harsh 
and  unjust  as  to  punish  a  common 
carrier  who  makes  such  a  discrimi- 
nation under  the  circumstances,  but 
rather  commends  and  approves  what 
was  done.  While,  therefore,  it  may 
be  true,  as  a  general  proposition,  that 
it  was  the  duty  of  the  company  to 
forward  freight  in  the  order  in  which 
it  was  received,  yet  in  this  case  there 
was  a  great  public  necessity  to  which 
all  general  rules  must  bend,  making 
it  the  imperative  duty  of  the  com- 
pany to  give  relief  goods  a  prefer- 
ence. 'The  law  itself,  and  the  ad- 
ministration of  it,'  said  Sir  W.  Scott 
(3  Dods.  323-24),  '  must  yield  to  that 
to  which  everything  must  bend  —  to 
necessity.  The  law,  in  its  most  posi- 
tive and  peremptory  injunctions,  is 
understood  to  disclaim,  as  it  does  in 
its  general  aphorisms,  all  intention 
of  compelling  to  impossibilities,  and 


the  administration  of  laws  must 
adopt  that  general  exception  in  the 
consideration  of  all  particular  cases. 
In  the  performance  of  that  duty  it 
has  three  points  to  which  its  atten- 
tion must  be  directed.  In  the  first 
place  it  must  see  that  the  nature  of 
the  necessity  pleaded  be  such  as  the 
law  itself  would  respect,  for  there 
may  be  a  necessity  which  it  would 
not.  A.  necessity  created  by  a  man's 
own  act,  with  a  fair  previous  knowl- 
edge of  the  consequences  that  would 
follow,  and  under  circumstances 
which  he  had  then  a  power  of  con- 
trolling, is  of  that  nature.  Secondly, 
that  the  party  who  w^as  so  placed 
used  all  practical  endeavors  to  sur- 
mount the  difficulties  which  already 
formed  that  necessity,  and  which,  on 
fair  trial,  he  found  insurmountable. 
I  do  not  mean  all  the  endeavors 
which  the  wit  of  man,  as  it  exists  in 
the  acutest  understanding,  might 
suggest,  but  such  as  may  reasonably 
be  expected  from  a  fair  degree  of 
discretion  and  an  ordinary  knowl- 
edge of  business.  Thirdly,  that  all 
this  shall  appear  by  distinct  and  un- 
suspected testimony;  for  the  positive 
injunctions  of  the  law,  if  proved  to 
be  violated,  can  give  way  to  nothing 
but  the  clearest  proof  of  the  necessity 
that  compelled  the  violation.'  And 
it  is  also  said  to  be  a  general  rule,  ad- 
mitting of  ample  practical  illustra- 
tion, '  that  where  the  law  creates  a 
duty  or  charge,  and  the  party  is  un- 
able to  perform  it  without  any  de- 
fault in  him,  and  has  no  remedy  over, 
there  the  law  will  in  general  excuse 
him.' " 


409 


§§  448,  449.]  CARRIERS.  [part  v. 

under  such  circumstances,  hovrever,  should  inform  those  bring- 
ing freight  for  carriage  of  his  condition;  that  he  is  unable 
to  carry  without  delay;  and  that  if  left  the  goods  will  have 
to  wait  their  order  for  shipment  and  until  other  freight  on  hand 
for  carriage  is  shipped,  thus  affording  the  shipper  an  option  to 
leave  the  goods  upon  the  condition  named  or  take  them  to  an- 
other carrier. 

§  448.  Carrier  not  permittee!  to  arbitrarily  refuse  to  re- 
ceive and  ship. —  When  the  shipper  has  done  all  that  by  the 
law  and  the  reasonable  regulations  of  the  company  he  is  bound 
to  do  by  way  of  delivering  the  goods  for  shipment,  the  car- 
rier cannot  arbitrarily  refuse  to  accept  and  transport  them. 
The  law  will  assume  that  the  freight  is  in  his  possession  and 
control,  and  he  will  be  held  for  its  safe  custody  and  ship- 
ment; and  in  such  case  if  the  carrier  should  refuse,  and  an  ac- 
tion at  law  for  damages  would  not  be  an  adequate  remedy,  a 
court  of  equit}'  could  no  doubt  be  successfully  invoked  and  the 
carrier  compelled  to  transport  the  goods. 

§  449.  Equitable  proceedings  to  enforce  the  receiving  and 
shipping  of  freight. —  A  rule  of  law  well  settled  in  the  law 
of  carriers  is  that  the  carrier  is  not  permitted  to  make  unjust 
and  discriminating  preferences  by  way  of  receiving  and  trans- 
porting freight;  the  general  rule  is  that  all  must  enjoy  the 
same  privileges  and  be  subject  to  the  same  proceedings.  This 
applies  :o  the  matter  of  receiving  the  goods  for  shipment  as 
well  as  to  their  transportation,  and  when  the  company  makes 
unjust  discriminations,  and  the  shipper  has  no  adequate  remedy 
at  law  for  the  redress  of  such  wrongs,  a  court  of  equity  will 
take  jurisdiction  and  by  its  decree  determine  the  equitable  rights 
of  the  parties.  This  question  was  before  the  court  in  the  case 
of  Rogers  Locomotive^  etc.  ^Yor'ks  v.  Erie  R.  Co}  It  was  claimed 
on  the  part  of  the  complainant  that  there  was  a  combination 
between  the  railroad  company  and  certain  other  of  its  directors 
to  organize  the  "  Union  Locomotive  Express  Company,"  with 
power  to  forward  and  carry  locomotives  and  other  property, 
and  that  by  reason  of  this  the  shipping  rates  of  the  locomotives 
of  the  complainant  were  very  much  increased ;  that  b}'  the  law 
granting  defendant  railroad  their  franchise,  they  were  bound 
to  receive  and  ship  the  locomotives  of  the  complainant  and 

120N.  J.  Ch.  379. 
410 


OH.  IV.]  FIXING    LIABILITT.  [§  450. 

others  at  a  reasonable  rate,  which  was  very  much  less  than  the 
rate  of  shipment  by  the  express  company,  claiming  that  there 
was  an  unlawful  combination  to  increase  the  rates.  The  court 
said :  "  If  the  allegations  of  the  bill  are  true,  and  they  are  sup- 
ported by  the  affidavits  annexed,  and  are  not  denied  by  answer 
or  affidavit,  they  present  a  flagrant  case  of  refusal  to  perform 
the  duties  imposed  upon  it  by  law,  and  for  which  its  franchises 
were  granted,  by  a  corporation  public  in  its  object  and  almost 
such  in  its  character.  Railway  companies  have  delegated  to 
them  as  part  of  their  franchises  much  of  the  sovereign  power 
of  the  state,  in  consideration  of  their  discharging  part  of  what 
are  the  proper  duties  of  the  government,  that  is  providing  the 
means  of  commerce  and  intercourse  by  constructing  the  roads 
which  are  the  avenues  of  that  commerce.  The  injury 

to  the  complainant,  too,  is  of  that  nature,  that  while  there  may 
be  a  remedy  at  law,  as  by  recovery  of  damages  for  injury,  yet 
is  such  that  cannot  be  adequately,  relieved  by  suits  for  dam- 
ages. It  is  continually  recurring,  and  will  require  continued 
and  repeated  suits,  and  continued  litigation,  and  the  expenses 
of  each  suit  would  make  the  recovery  of  the  excess  paid  an 
inadequate  remedy."  . 

After  a  thorough  discussion  of  the  question  the  court  de- 
creed that  an  injunction  be  issued  to  restrain  the  parties  from 
in  any  way  preventing  or  hindering  the  railroad  company 
transporting  complainant's  locomotives.^ 

§  450.  Acceptance  by  the  carrier. —  As  a  general  rule,  the 
delivery  of  the  goods  must  be  followed  by  an  acceptance,  either 
actual  or  implied,  upon  the  part  of  the  carrier  or  his  duly  au- 
thorized agents.  But  it  may  be  said  that  before  this  can  occur, 
except  in  cases  where  constructive  delivery  may  be  made,  the 
attention  of  the  carrier  or  his  duly  authorized  agents  must 
be  called  to  the  delivery  of  the  property.  The  acceptance, 
in  other  words,  will  not  be  said  to  have  taken  place  unless 
there  is  knowledge  upon  the  part  of  the  carrier  that  the  goods 
are  delivered  into  his  custody  and  control  for  transportation, 
or  unless  at  least  such  facts  and  circumstances  are  brought 
to  the  attention  of  the  carrier  as  would  justify  the  conclusion 
that  he  ought  to  have  known  that  the  goods  had  been  deliv- 
ered.    An  acceptance  by  the  carrier  will,  however,  waive  any 

1  Stock  Yard  Co.  v.  Louisville  R.  Co.,  67  Fed.  35,  31  U.  S.  App.  252. 

411 


§§  451,  452.]  CAKRIEKS.  [PAET   V. 

defects  in  the  manner  of  the  delivery  of  the  goods.  "Where  a 
package  was  delivered  to  the  agent  of  a  stage-coach  company 
at  the  postoffice  where  the  stage  Avas  standing,  and  not  at  the 
office  of  the  company,  and  was  by  the  agent,  when  received, 
entered  on  the  way-bill,  the  agent  having  previously  directed 
the  person  who  had  the  care  of  the  package  to  bring  it  to  the 
postoffice,  and  the  package  having  been  lost  before  reaching 
its  destination,  it  w^as  held  the  owners  of  the  coach  were  liable 
to  the  owner  of  the  package  for  its  value,  the  delivery  at  the 
postoffice  having  been  with  the  assent  of  their  agent.^ 

§  451.  When  delivery  and  acceptance  completed. —  The 
delivery  to  and  acceptance  of  the  goods  by  the  common  carrier 
at  once  fixes  the  liability  of  the  carrier;  the  custody  and  con- 
trol of  the  goods  are  transferred  to  him.  Just  when  this  change 
takes  place  it  is  sometimes  difficult  to  prove,  but  it  may  be  gen- 
erally said  that  when  the  shipper  has  done  all  that  he  can  do 
to  effect  the  shipment  of  the  goods,  and  has  released  his  pos- 
session and  control  by  actual  delivery  or  such  constructive  de- 
livery as  is  legal  and  sufficient,  then  the  delivery  and  accept- 
ance is  complete  and  the  carrier's  liability  at  once  attaches. 

§  452.  A  bill  of  lading  or  receipt  not  a  requisite  to  bind 
carrier. —  A  bill  of  lading  or  receipt  from  the  carrier  to  the 
shipper,  although  it  is  usually  given,  and  the  course  of  busi- 
ness would  hardly  seem  satisfied  until  such  a  bill  or  receipt 
had  been  delivered,  is,  however,  not  a  requisite  to  a  full  and 
complete  delivery.  It  may  be  said  that  it  is  but  the  evidence 
of  such  a  delivery ;  but  if  no  such  receipt  or  bill  has  been  de- 
livered to  the  shipper  upon  the  receipt  of  the  goods  for  trans- 
portation, it  may  nevertheless  be  shown  by  parol  proof  that 
the, goods  have  actually  been  delivered  and  the  carrier  has 
actually  received  them  for  shipment;  and  so  well  fixed  and  set- 
tled is  this  rule,  that  where  by  statute  it  was  made  compulsory 
upon  the  carrier  to  give  to  the  shipper  a  receipt  for  the  goods 
or  a  bill  of  lading,  the  delivery  and  acceptance  being  complete 
and  no  receipt  or  bill  of  lading  having  been  given,  it  was  held 
the  carrier  was  liable.^ 

1  Phillips  V.  Earle  et  al.,  8  Pick.  182.  riam  v.  Railroad  Co.,  20  Conn.  354; 
There  must  be  acceptance.  Hutch-  Converse  v.  Transportation  Co.,  33 
inson  on  Carriers,  sec.  87;  Cronkite  Conn.  166;  Green  v.  Railroad  Co.,  38 
V.  Wells,  31   N.  Y.  247.     Acceptance     Iowa.  100. 

may  be  actual  or  constructive.     Mer-        -  Montgomery  &  Co.  v.   Kolb,  73 

412 


CH.  IV.]  FIXING    LIABILITY.  [§  452.. 

Where  goods  were  delivered  on  board  a  vessel  at  Xew 
York  to  be  carried  to  England,  "  were  receipted  for,  the  receipt 
specifying  the  price  of  freight,  but  before  bills  of  lading  were 
executed,  and  before  the  ship  sailed,  she  was  burned  with  the 
goods  on  board  without  any  actual  negligence  on  defendants'" 
part,  the  defendants  were  held  liable  as  common  carriers  for 
the  loss  of  the  goods."  ^  And  where  the  shipper  loaded  goods 
into  a  car  furnished  by  the  carrier  for  the  purpose  of  the  par- 
ticular shipment,  the  agent  of  the  company  assenting  thereto, 
it  was  held  that  the  goods  were  as  much  in  the  possession  of 
the  carrier  as  though  they  had  been  delivered  at  its  warehouse 
for  shipment.  Such  goods  so  delivered  having  been  destroyed 
by  fire  before  the  bill  of  lading  had  been  made  out,  the  carrier 
was  held  liable;  the  liability  having  attached  from  the  time  of 
accepting  the  goods  for  transportation.^ 

And  in  Shelton  v.  Merchants'  Trans])ortation  Co?  it  was  held 
that  when  goods  were  delivered  to  a  carrier  marked  with  the 
name  and  address  of  the  assignee,  the  common-law  liability  at- 
taches even  thouo;h  no  contract  or  bill  of  lading  was  o^iven  th& 
shipper.  Upon  the  delivery  of  the  goods  in  the  warehouse  of 
the  carrier  with  the  name  of  the  assignee  and  place  of  desti- 
nation, the  agent  of  the  carrier  having  notice  of  such  delivery^ 
and  that  it  is  for  the  purpose  of  transportation  as  marked,  all 
is  done  that  the  shipper  can  do;  the  goods  are  in  the  possession 
and  control  of  the  carrier;  they  are  actually,  as  we  have  seen, 
in  transit,  and  the  liability  as  common  carrier  attaches  at  once, 
and  the  mere  failure  or  even  refusalof  the  agent  of  the  carrier 
to  give  and  deliver  to  the  shipper  a  bill  of  lading  or  a  receipt 
for  the  goods  will  not  relieve  the  carrier  from  liability  at  least 

Ala.  396.     Held,  "  where  the  statute  The  Water  Witch,  4  Fed.  Cas.  No. 

makes  it  the  duty  of  the  common  1,971.     A  carrier  is  liable  for  goods 

carrier  to  give  a  receipt  for  the  mer-  from  the  time  thej^  are  shi^jped,  al- 

chandise  delivered  to  them  for  trans-  though   the  bill  of  lading  may  be 

portation.  their  failure  to  do  so  can-  actually  signed   subsequent  to  the 

not  vary  their  liability  if  delivery  is  loss.     Snow  et  al.  v.  Carruth  et  al., 

sufficiently  shown."     A  master  who  32  Fed.  Cas.  No.  13,144. 

receives  goods  on   board  his  vessel  ^  Lakeman   v.   Grinnell,  18  N,  Y. 

and  carries  them  to  their  destination  Sup.  Ct.  (5  Bosw.)  625. 

subjects  the  vessel  to  the  common-  ^minois  Cent.  R.  Co.  v.  Smyser,  38 

law   liability   of  a    carrier,   though  111.   354;  Toledo  R.   Co.   v.  Gilvin.  81 

there  is  no  bill  of  lading  or  other  111.  511. 

agreement  entered  into.     Brower  v.  ^yg  N.  Y.  Sup.  Ct.  527. 

413 


§§453,454.]  CARRIERS.  [party, 

for  ordinary  diligence-/  but  the  receipt  for  the  goods,  or  that 
part  of  the  bill  of  lading  which  is  held  to  be  a  receipt,  given 
by  the  common  carrier  to  the  shipper  on  delivery  of  the  goods, 
may  be  varied  or  even  contradicted  by  parol  proof.  So,  in 
case  no  goods  were  actually  delivered,  although  a  bill  of  lad- 
ing was  made  out  and  delivered  to  the  shipper,  the  carrier  can- 
not be  held  liable  upon  it  for  the  goods  described  or  receipted 
in  it.2 

§  453.  Action  for  refusal  to  accept  and  transport  goods. — 
This  subject  has  already  been  somewhat  considered/  but,  in 
discussing  the  subject  of  delivery,  the  duty  of  the  shipper  in 
that  respect,  the  accepting  and  transporting  of  property,  it 
seems  necessary  to  call  attention  to  some  requisites  to  the  sus- 
taining of  an  action  for  failure  of  the  carrier  to  perform  his  duty. 
In  order  to  sustain  an  action  against  the  carrier  for  refusal  to 
receive  and  transport  the  goods,  it  will  at  once  occur  to  the 
reader  that  the  following  requisites  on  the  part  of  the  shipper 
and  carrier  must  be  observed:  (1)  A  tender  of  the  goods; 
(2)  payment  of  the  freight  if  demanded,  and  if  not,  an  oifer  or 
willingness  to  pay;  (3)  an  ability  to  receive  and  transport  the 
goods. 

§  454.  Tender  of  the  goods  and  payment  of  freight. —  It 
has  been  said  that  in  order  "  to  sustain  an  action  against  a  rail- 
road company  for  non-transportation  of  freight  there  must  be 
evidence  of  a  tender  on  the  part  of  the  plaintiff,  or  of  a  will- 
ingness to  pay  the  customary  price  of  such  carriage.  But  it 
has  been  generally  held  that  the  payment  of  the  freight  is  not 
necessary  to  sustain  an  action  against  a  carrier  for  refusing  to 
carry  or  delay  in  carrying  freight  unless  it  is  required  b}^  the 

1  Aiken  v.  Chicago,  etc.  R.  Co.,  68  A.  263.     "A  carrier's  duty  is  not  lim- 

lowa,  363,  25  Am.  &  Eng.  R  Cases,  ited  to  the  transportation  of  goods 

377;  Cragin  v.  N.  Y.  Cent.  R.  Co.,  51  delivered  for  carriage.     He  must  ex- 

N.  Y.  63.     "  A  shipper's  knowledge  ercise  such  diligence  as  is  required 

of  directions  to  the  carrier's  agent  by  law  to  protect  the  goods  from  de- 

not  to  receive  certain  articles  for  struction    and    injury    from     any 

transportation  vpill  not  relieve  the  source  which  may  be  averted,  and 

carrier  from  liability  if  their  trans-  which  in  the  exercise  of  care  and 

portation    is  actually  undertaken."  ordinary  intelligence  may  be  known 

Bennett  v.  American  Trans.   Co.,  83  or  anticipated."     Beard  v.  111.  Cent. 

Me.  236.  R.  Co.,  79  Iowa,  518,  7  L.  R  A.  280. 

^National   Bank   of  Commerce  v.        ^  Ante,  %  idO. 
Chicago  R.  Co.,  44  Minn.  224,  9  L.  R. 

414 


CH.  IV,]  FIXING    LIABILITY.  [§§  455,  456. 

carrier."^  But  where  an  action  was  brought  for  a  refusal  on 
the  part  of  the  carrier  to  transport  coal,  it  was  held  that  "  a 
refusal  of  the  carrier  to  transport  the  coal  does  not,  in  the  ab- 
sence of  the  actual  tender  of  a  definite  amount  for  transporta- 
tion, amount  to  a  waiver  of  such  tender  so  as  to  subject  the 
carrier  to  liability  for  loss  of  business  caused  by  relying  upon 
such  refusal."^ 

§  455.  Who  may  sue. —  The  action,  as  will  be  seen,  must 
necessarily  arise  from  the  business  transacted  between  the 
shipper  and  the  railroad  company.  It  is  because  of  the  refusal 
of  the  railroad  company  to  receive  the  goods  for  transporta- 
tion from  the  shipper  that  the  suit  is  commenced ;  therefore  it 
follows  that  the  parties  directly  in  Interest  are  the  shipper  and 
the  carrier;  it  is  therefore  the  holding  of  the  courts  that  the 
refusal  of  the  carrier  to  take  goods  for  a  particular  assignee  is 
in  violation  of  an  obligation  to  the  shipper,  and  not  to  the  con- 
signee, and  that  an  action  therefor  for  damages  by  the  con- 
signee would  not  lie;  that  the  proper  plaintiff  would  be  the 
shipper.^ 

§  456,  The  liability. —  The  action,  it  will  be  remembered, 
is  for  refusing  to  receive  and  transport  the  goods.  In  this  case 
the  carrier  does  not  receive  the  property  into  his  custod}^  and 
control.  The  property  is  merely  left  with  the  shipper;  it 
would  therefore  follow  that  the  extraordinary  liability  which 
the  common  law  places  upon  the  carrier  could  not  attach  in 
this  case,  for  in  order  that  the  carrier  be  liable  for  the  extraor- 
dinary liability,  he  must  have  received  the  goods  into  his  cus- 
tody and  control;  therefore  the  liability  in  such  case  is  based 
upon  the  question  of  actual  damage  that  results  to  the  shipper 
by  reason  of  the  refusal  to  accept  and  transport  the  property.^ 

1  Galena  &  Car.  Co.  v.  Rae,  18  111.  transportation  of  property  should  be 

488,  68  Am.  Dec.  574.  such  as  to  do  justice  and  to  award 

^Wilder  v.  Johnsburg  &  L.  C.  Ry.  full  compensation  and  no  more  to 

Co.,  66  Vt.  636,  30  Atl.  41.  the  party  injured."    And  it  was  there 

8  Lafaye  v.  Harris,  13  La.  Ann.  553.  held  "  that  the  true  measure  of  dam- 

*  In  Cobb,  Blasdel  &  Co.  v.  I.  C.  R.  age  would  be  the  difference  between 

Co.,  38  Iowa,  601,  630,    the   conten-  the  price  paid  for  the  goods  and  the 

tion,  among  other  things,  was  as  to  priceundertheir  contract  which  was 

the  measure  of  damages,  and  it  was  with  the  government,  less  the  freight 

held  "  that  the  measure  of  damages  to  the  point  of  destination."    Bridge- 

against  the  carrier  for  a  violation  of  man  v.  Steamboat  Emily,  18  Iowa, 

his  duty  or   act  in    respect  to   the  510;  Jamison  v.  Gray,  29  Iowa,  537; 

415 


§  457.]  CAKEIERS.  [part   V. 

§  457.  Duty  to  provide  proper  vehicles. —  After  having  re- 
ceived the  goods  for  shipment  it  goes  without  saying  that  it  is 
the  duty  of  the  carrier  to  furnish  proper  vehicles  and  proper 
conveyance  for  the  transportation  of  the  freight.  Kow,  what 
would  be  proper  vehicles  is  a  question  that  must  be  determined 
largely  by  the  class  of  freight  that  is  to  be  shipped.  If  a 
railroad  company  is  employed  to  transport  railroad  iron,  ajiat- 
car  is  a  very  proper  vehicle;  on  the  other  hand,  such  a  car 
would  be  very  inappropriate  if  the  freight  were  bales  of  hay 
or  kegs  of  powder,  and  in  this  connection  the  times  and  cus- 
toms of  the  times  will  have  something  to  do  with  the  ques- 
tion. In  these  days  of  refrigerator  cars  it  would  not  be  ex- 
pected that  a  carrier  would  be  excused  if  loss  occurred  on  ac- 
count of  shipping  dressed  beef  a  long  distance  in  a  common 
car,  or  in  a  refrigerator  car  without  ice.  Or,  if  he  is  shipping 
fruit  or  other  perishable  property,  if  he  fails  to  properly  care 
for  it,  according  to  modern  usage  in  that  respect;  and  Avhere 
strawberries  were  shipped  from  California  to  Xew  York  and 
Philadelphia  in  a  refrigerator  car  that  was  furnished  to  the 
railroad  company  by  a  transportation  company  which  agreed 
to  keep  the  goods  properly  refrigerated,  but  failed  to  do  so, 
and  for  lack  of  ice  the  berries  were  lost,  it  was  held  that  the 
railroad  company  was  liable,  and  the  agreement  of  the  trans- 
portation company  could  not  be  considered  a  defense.^     And 

Mich.  Southern  R.  Co.  v.  Caster,  13  and  expeditious  carriage  and  preser- 

Ind.  164;  Toledo,  W.  &  W.  R  Co.  v.  vation  of  the  freiglit  it  undertook  to 

Roberts,  71  111.  540;  Louisville,  etc.  carry.     A  railroad  company  cannot 

R  Co.  V.  Flanuigan.  113  Ind.  488,  14  escape  responsibility  for  its  failure 

N.  E.  307;  Ward's  Cen.  &  P.   Lake  to  provide  cars  reasonably  fit  for  the 

Co.  V.  Elkins,  34  Mich.  439;  O'Conner  conveyance  of  the  particular  class  of 

V.  Forster,  10  Watts,  418;  Laurent  v.  goods  it  undertakes  to  carry  by  al- 

Vaughan,  30  Vt.  90.  ~  leging  that  the  cars  used  for  the 

1  New  York,  etc.  v.  Cromwell  (Va.),  purposes  of  its  own  ti-ansit  were  the 

49  L.  R.  A.  462.   The  court  say:  "  The  property  of  another.     The  undertak- 

California  Fruit  Transportation  Com-  ing  of  the  plaintiff  in  error  was  to 

pany,  for  a  consideration,  furnished  properly  care  for  and  safely  carry  the 

its  cars   to  the    plaintiff    in    error,  fruit  of  the  defendant  in  error,  and 

These  cars  were  agencies  or  means  it  is  immaterial  that  the    cars  in 

employed  by  the  plaintiff   in  error  which  they  were  carried  were  owned 

for  carrying  on  his  business  and  per-  by  the  California  Fruit  Transporta- 

forming  its  duty  to  the  public  as  a  tion  Company,  or  that  such  company 

common  carriex-,  one  of  which  was  undertook  to  ice  said  cars  or  to  pay 

to  provide  suitable  cars  for  the  safe  for  the  ice.   As  between  the  plaintiff" 

416 


CH.   ly.]  FIXING    LIABILITY.  [§  457. 

SO  where  butter  was  received  for  transportation  from  a  point 
in  Iowa  to  New  Orleans,  the  butter  was  put  into  a  refrigerator 
car  by  the  company  receiving  it  and  afterwards  put  into  a  com- 
mon box-car,  the  second  company  having  no  refrigerator  cars. 
It  was  held  that,  notwithstanding  this,  the  company  was  liable 
for  the  loss  of  the  butter;  the  court  saying,  "  a  carrier's  duty  is 
not  limited  to  the  transportation  of  goods  delivered  for  car- 
riage. He  must  exercise  such  diligence  as  is  required  by  law 
to  protect  the  goods  from  destruction  and  injury  resulting 
from  conditions  which,  in  the  exercise  of  due  care,  may 
be  averted  or  counteracted.  He  must  guard  it  from  destruc- 
tion or  injury  by  the  elements,  from  the  effects  of  delay,  in- 
deed, from  every  source  of  injury  which  he  may  avert,  and 
which  in  the  exercise  of  care  and  ordinary  intelligence  may  be 
known  or  anticipated.  Unknown  causes,  or  those  which  are 
inherent  in  the  nature  of  the  goods,  and  cannot  be  in  the  ex- 
ercise of  diligence  averted,  will  not  render  the  carrier  liable. 
The  natm-e  of  the  goods  must  be  considered  in  determining  the 
carrier's  duty.  Some  metals  may  be  transported  in  open  cars. 
Many  articles  of  commerce  when  transported  must  be  pro- 
tected from  rain,  sunshine  and  heat,  and  must  have  cars  fit  for 
their  safe  transportation.  Live  animals  must  have  food  and 
water  when  the  distance  of  transportation  demands  it.  Fruit 
and  some  other  perishable  articles  must  be  carried  with  expedi- 
tion and  protected  from  frost.     So  the  carrier  must  attend  to 

in  error  and  defendant  in  error,  the  barge  and  its  unfitness  for  holding 

California  Fruit  Transportation  Com-  the  cargo  thus  loaded,   the  wheat 

pany  and  its   employees  were  the  was  damaged.     It  was  held  in  this 

agents  of  the  plaintiff  in  error.    So  case  that  the  carrier  must  know,  at 

far  as  the  defendant  in  error  was  con-  his  own  peril,  the  condition  of  the 

cerned,   the  plaintiff  in   error  was  vehicle  in  which  he  carries  the  goods 

under  the  same  obligation  to  care  for  of  the  shipper,  for  the  reason  that 

the  fruit  that  it  would  have  been  had  the  owner  of  the  cargo  is  under  no 

the  refrigerator  cars  belonged  to  it.  obligation  to  look  after  this  matter, 

For  these  reasons  the  judgment  is  and  he  has  no  means  of  obtaining 

affirmed."     In  The  Northern  Belle,  9  any  positive  information  if  he  should 

Wall.  526,  the   court  discussed  the  attempt  it:  that  it  is  the  duty  of  the 

modern    manner    of   loading  grain  carrier  to  furnish  a  vehicle  which  is 

through  conductors  into  the  cars  or  entirely  adapted   to  the  particular 

boats  instead  of  putting  it  in  sacks  work;  and  when  from  any  cause  it 

as  was  formerly  done,  the  conten-  is  not  fit  or  not  adapted  to  the  carry- 

tion  being  in  the  case  that,  on  ac-  ing  of  goods,  and  damage  results,  the 

count  of  the  unseaworthiness  of  the  carrier  will  be  liable. 
27                                                417 


§  457.]  CARRIEES.  [PA^T   Y. 

the  character  of  the  goods  he  transports.  He  is  informed 
thereof  by  inspection  of  the  freight  bills,  or  by  other  papers 
accompanying  the  shipment.  In  the  case  before  us,  the  marks 
on  the  baggage  and  the  way-bill  disclosed  that  the  subject  of 
the  shipment  was  butter.  The  employees  of  defendant  were 
endowed  with  intelligence  which  taught  them  that  the  season 
was  summer,  when  warm  weather  prevailed;  that  butter  in 
common  cars  would  be  greatly  injured  by  the  ordinary  heat 
of  the  climate,  and  that  the  butter  as  it  approached  its  destina- 
tion would  be  subject,  by  reason  of  the  change  of  latitude,  to 
greatly  increased  heat  from  the  weather.  All  of  these  things 
are  familiarly  known  to  all  men.  Surely,  the  law  will  presume 
that  defendant's  emplo^^ees  had  full  knowledge  thereof.  The 
law  required  the  defendant,  having  received  the  perishable 
cargo  involved  in  this  suit,  to  exercise  the  care  and  diligence 
necessary  to  protect  it,  and  if  improved  cars  for  the  transpor- 
tation of  articles  of  commerce  liable  to  injury  from  heat  were 
in  use,  it  was  defendant's  duty  to  use  such  cars  in  carrying  the 
butter."  1 

And  so  the  obligation  or  duty  would  be  the  same  upon  the 
carrier  in  case  it  were  necessary  in  the  carrying  of  the  goods  to 
preserve  them  from  frost;  and  in  order  that  the  carrier  may 
meet  these  requirements,  he  must  provide  himself  with  vehicles 
that  are  appropriate  for  the  carriage  of  the  property  he  accepts 
for  transportation,  and  if  he  is  negligent  in  the  providing  of 
such  vehicles  and  such  improved  facilities,  he  will  be  held 
liable  for  any  damage  that  may  result  because  of  such  failure 
or  neg'lio^ence. 

1  Beard  v.  111.  Cent.  R.  Co.,  79  la.  Colo.  280;  Hutchinson  on  Carriers, 
510,  7  L.  R.  A.  280,  citing  numerous  sec.  294;  Steinway  v.  Erie  R.  Co.,  43 
cases;  Hewett  v.  Chicago,  B.  &  Q.  R.  N.  Y.  123;  Boscowitz  v.  Adams  Ex. 
Co.,  63  la.  611;  Sager  v.  Portsmouth,  Co.,  93  111.  525;  Hannibal  &  St.  J.  R 
St.  P.  &  E.  R.  Co.,  31  Mo.  228;  Haw-  Co.  v.  Swift,  12  Wall.  262;  Helliwell 
kins  V.  Great  Western  R.  Co.,  17  v.  Grand  Trunk  R.  Co.,  7  Fed.  76;  Par- 
Mich.  62;  Railway  Co.  v,  Pratt,  22  amore  v.  Western  R.  Co.,  53  Ga.  385; 
Wall.  123;  Wing  v.  N.  Y.  &  E.  R.  Co.,  Dixon  v.  Richmond  &  D.  R  Co.,  74 
1  Hilt.  (N.  Y.)  241;  Merchants'  Dis-  N.  C.  538. 
patch   Transp.   Co.    v.   Comfort h,  3 

418 


CHAPTER  Y. 


FIXING  LIABILITY  OF  CARRIER  — THE  BILL  OF  LADING. 


§  458.  Description  and  office  of  the 
bill  of  lading. 

459.  Its  negotiability. 

460.  The  consignor  consigns  goods 

to  himself. 

461.  The  bill  of  lading  with  draft 

attached. 


462. 
463. 

464. 


465. 


Bill  of  lading  as  proof. 

Authorities  not  entirely 

harmonious. 

Conclusiveness  as  to  condi- 
tion, weight,  contents  or 
value. 

By  whom  issued. 


§  458.  Description  and  office  of  the  bill  of  lading.— The 

bill  of  lading  is  both  a  receipt  for  the  goods  delivered  for  ship- 
ment, from  the  common  carrier  to  the  shipper  or  consignor, 
and  a  contract  on  the  part  of  the  carrier  and  the  shipper  that 
the  carrier  will  transport  the  goods  to  their  destination  if  on 
its  road,  and  if  not,  that  he  will  deliver  them  to  another  car- 
rier if  there  is  such  an  one,  who  will  carry  them  to  their  desti- 
nation. To  the  bill  of  lading  are  generally  attached  the  limita- 
tions that  the  common  carrier's  demands  shall  be  a  part  of  the 
contract.  It  is  not  necessary,  in  order  to  fix  the  liability  of 
the  carrier,  that  he  shall  issue  to  the  shipper  a  bill  of  lading, 
but  it  is  very  important,  as  evidence  of  the  acceptance  of  the 
goods  delivered  for  immediate  transportation  and  as  showing 
when  the  relation  commenced.  This  bill  of  lading  also  evi- 
dences very  largely  the  duty  and  liability  of  the  carrier  as  to 
the  particular  freight  received  for  shipment  while  in  transit, 
and  his  duty  at  the  termination  of  the  route.  It  is  often  issued 
in  triplicate,  a  copy  being  kept  by  the  carrier,  the  original 
given  to  the  shipper,  together  with  a  copy  either  to  be  kept  by 
the  shipper  or  transmitted  by  him  to  the  consignee.  It  is  the 
original  bill  of  lading  that  is  the  most  important.  This  original 
is  the  bill  that  the  common  carrier  will  demand  at  the  end  of 
the  route  before  the  delivery  of  the  goods. 

The  bill  of  lading  has  another  important  office,  and  that  is 
as  commercial  paper  or  security.  l>y  it  the  carrier  acknowl- 
edges that  he  has  received  from  the  owner  or  shipper  the 

41<J 


§§  459,  460.]  CARRIERS.  *  [part  v. 

goods  described  for  immediate  transportation  and  that  they 
are  consigned  to  the  person  therein  named  as  consignee ;  be- 
cause of  this  the  bill  of  lading  at  once  becomes  valuable  to  the 
consignee,  its  value  being  co-extensive  with  the  value  of  the 
goods  shipped ;  for  the  carrier  by  it  acknowledges  not  only 
that  he  has  the  possession  of  the  property  for  transportation, 
but  that  he  is  in  duty  bound  to  deliver  the  property  named  in  the 
bill  at  its  destination  to  the  consignee  therein  named.  The 
bill  thus  becomes  an  evidence  of  ownership  of  the  consignee, 
coupled  with  the  duty  of  the  carrier  to  see  that  he  receives 
the  property;  and  so  the  consignee  may  use  the  bill  of  lading 
as  property. 

§  459.  Its  negotiability. — While,  as  we  have  seen  in  a  for- 
mer discussion,  it  is  not  negotiable  paper  in  the  sense  of  the 
law  merchant,  it  may,  however,  be  transferred  by  indorsement 
so  as  to  become,  in  the  hands  of  the  consignee,  or  his  order,  a 
claim  for  the  delivery  of  the  propert}';  that  is  to  say,  it  is  not 
commercial  paper  which  will  pass  current  as  do  promissory 
notes,  or  that  class  of  commercial  paper  which  passes  by  in- 
dorsement, but  it  is  rather  the  title  to  the  goods  described  in 
it  that  passes.  It  stands  for  the  goods  themselves  and  not  for 
an}'-  particular  amount  of  money.  It  is  a  claim  for  the  deliv- 
ery of  the  property  from  the  carrier  company;  it  is  in  the  nat- 
ure of  a  quasi-negotisihle  instrument.  It  is  upon  the  theory 
that  the  common  carrier  can  satisfy  his  contract  and  obliga- 
tion onl}^  by  delivering  the  property  to  the  person  or  company 
who  presents  the  bill  of  lading,  and  then  only  by  following 
the  instructions  of  the  shipper  that  the  carrier  is  bound  to 
follow. 

§460.  The  consignor  consigns  goods  to  himself. —  The 
shipper,  in  order  to  protect  himself,  often  consigns  the  goods 
to  himself,  this  giving  him  the  privilege  to  control  the  deliv- 
ery of  the  property  at  the  end  of  the  route;  and  it  often  be- 
comes important  in  cases  where  goods  are  transported  to  be 
marketed  at  the  termination  of  the  shipment;  or  he  may,  of 
course,  consign  them  to  a  third  party.  In  either  case  it  will 
become  the  duty  of  the  common  carrier  to  deliver  the  property 
according  to  the  contract  in  the  bill  of  lading  and  to  the  per- 
son named  as  consignee,  or  his  order,  and  to  no  one  else.  And 
in  order  that  the  carrier  may  protect  himself,  he  may  require 

420 


CH.  v.]  FIXING    LIABILITY BILL    OF    LADING.  [§  461. 

that  the  original  bill  of  lading  shall  be  surrendered  to  him  at 
the  time  he  delivers  the  goods  shipped. 

§  461.  The  bill  of  lading  with  draft  attached. —  This  has 
come  to  be  a  matter  of  very  great  importance  in  the  com- 
mercial world.  The  shipper,  for  greater  security,  at  the  time 
of  obtaining  his  bill  of  lading  for  goods  intended  for  the  mar- 
ket at  their  destination,  often  consigns  them  to  himself  or 
order;  he  then  attaches  to  the  bill  of  lading  a  draft  for  the 
amount  of  money  that  he  is  to  receive  from  the  buyer  with 
his  indorsement  upon  the  bill  -of  lading  which  will  obtain  a 
delivery  of  the  property;  he  sends  the  bill  of  lading,  with  the 
draft  attached,  to  some  bank  in  the  city  where  the  goods  are  to 
be  delivered,  with  instructions  to  deliver  the  bill  of  lading  to 
the  purchaser  upon  payment  of  the  draft  attached.  Or,  if  the 
goods  are  consigned  to  the  purchaser,  he  may  pursue  the  same 
course:  attach  the  draft  to  the  bill  of  lading,  and  transmit  it  to 
the  bank  with  instructions  that  it  be  delivered  upon  the  payment 
of  the  draft.  Often,  and  generally,  the  shipper  makes  this 
draft  through  his  home  bank  and  thus  obtains  a  credit  at 
his  home  bank  for  the  amount  in  advance.  This  manner  of 
shipment  and  the  collection  at  once  shows  to  us  the  impor- 
tance of  the  business,  and  the  reasons  for  a  strict  compliance 
with  the  rules  of  law  governing  the  transaction,  and  particu- 
larly the  liability  of  the  common  carrier  as  well  as  the  bank 
to  whom  the  instructions  are  given  as  to  the  delivery  of  the  bill 
of  lading.^ 

iWe  here  append  a  copy  of  the  bill  of  lading  made  up  with  fictitious 
names  and  amounts;  also  a  copy  of  the  conditions  that  are  usually  printed 
upon  the  back  of  the  bill.  This  bill  of  lading,  with  the  conditions,  is  the 
bill  of  lading  adopted  by  the  Eastern  Traffic  Association.  We  also  append 
a  draft  for  the  amount.  The  draft,  as  we  have  said,  is  usually  attached  to 
the  bill  of  lading.  It  is  the  practice  of  some  of  the  railroad  companies  to 
consign  the  goods  to  the  consignor  or  order,  which  indicates  to  them  that 
a  draft  is  to  be  attached.  The  banks  often  adopt  the  stamping  upon  the 
draft  itself  of  certain  initials,  as  D.  A.  (meaning  "draft  attaclied  ").  With 
this  bill  of  lading  and  draft  attached  are  instructions  forwarded  to  the  bank 
not  to  deliver  the  bill  of  lading  to  the  consignee  until  the  draft  is  paid.  As, 
for  example,  in  the  case  made  up  by  this  bill  of  lading  with  draft  attached, 
John  Jones  goes  to  his  bank,  the  Detroit  National,  draws  his  draft  on  John 
Doe,  tlie  purchaser  in  New  York,  for  the  amount  of  the  shipment,  !j;G.O0O,  de- 
livers tiie  bill  of  lading  to  tlie  Detroit  National  Bank,  whicli  attaclies  it  to  the 
draft  and  sends  it  forward  to  the  bank  upon  which  it  is  drawn,  to  wit, 

421 


§  462.] 


CARKIEES. 


[PAKT    V. 


"National  Bank,  New  York,"  the  consignor,  taking  credit  at  its  home 
bank;  or,  if  the  home  bank  does  not  desire  to  give  him  credit  for  the 
amount,  awaits  the  collection  of  the  amount  through  the  bank.  If  the 
goods  are  shipped  with  the  draft  drawn  against  the  bill,  the  following  form 
of  bill  is  used: 

MICHIGAN  CENTRAL  RAILROAD  CO. 

BILL  OF  LADING. 

Detroit,  Mich.,  December  IS,  1001. 

Received  from  owner  by  Michigan  Central  Railroad  Company,  the  property  described 
below,  in  apparent  good  order,  except  as  noted  (contents  and  condition  of  contents  of  pack- 
ages unknown),  marked,  consigned  and  destined  as  indicated  below,  which  said  Company 
agrees  to  carry  to  the  said  destination,  if  on  its  road,  otherwise  to  deUver  to  another  carrier 
on  the  route  to  said  destination. 

It  is  mutually  agreed,  in  consideration  of  the  rate  of  freight  hereinafter  named,  as  to 
each  carrier  of  all  or  any  of  said  property  over  all  or  any  portion  of  said  route  to  destination, 
and  as  to  each  party  at  any  lime  interested  in  all  or  any  of  said  property,  that  every  service 
to  be  performed  hereunder  shall  be  subject  to  all  the  conditions,  whether  printed  or  icritten, 
herein  contained,  both  on  the  face  and  on  the  back  hereof,  and  which  are  hereby  agreed  to 
by  the  shipper  and  by  him  accepted  for  himself  and  his  assigns  as  just  and  reasonable. 

Upon  all  the  conditions,  whether  printed  or  written,  herein  contained,  both  on  the  face 

and  on  the  back  hereof,  it  is  mutually  agreed  that  the  rate  of  freight  from to is  to 

be,  in  cents  per  100  lbs: 


If..  Tunes 

If  First 
Class. 

If  Second 
Class. 

If  Third 
Class. 

K  Fourth 
Class. 

If  Fifth 
Class. 

If  Sixth 
Class. 

If  Special. 

First 
Class. 

Class. 

Rate. 

And  advanced  charges  at ,  $ . 


Marks,  Consignees  and  Destination. 

Description  of  Articles. 

Weight,  Subject  to 
Correction. 

Shippers  order. 

Notify 

John  Doe, 
54  Broadway,  New  York,  N.  T. 

Wheat 

10,000  bushels 

More  or  less. 

SAMUEL  JACKSON,  Freight  Agent. 
Note.—  Upon  the  back  of  this  bill  are  printed  certain  conditions  which  we  do  not  append.— 


The  draft  on  the  consignee,  John  Doe,  which  is  sent  through  the  bank  for 
payment  before  the  wheat  is  delivered  by  the  carrier,  may  be  as  follows: 


$6,000.  Detroit,  Mich.,  December  12,  1901. 

One  day  after  sight Pay  to  the 

order  of  National  Bank,  New  York. 

Six  thousand Dollars. 

Value  received  and  charge  the  same  to  account  of 
To  John  Doe,  I 

No.  16G6.  54  Broadway,  New  York,   j  John  Jones. 


§  462.  Bill  of  lading  as  proof. —  The  bill  of  lading  is  both 
a  receipt  for  the  goods  delivered  to  the  carrier  and  an  agree- 
ment on  the  part  of  the  carrier  to  transport  the  goods  to  their 
destination  and  deliver  them  to  the  consignee  or  his  order.  So 
far  as  the  bill  is  a  receipt  of  the  delivery  of  the  goods,  it  is  sub- 

422 


CH.  v.]  FIXING    LIABILITY BILL    OF    LADING.  [§  402. 

ject  to  the  law  of  evidence  governing  receipts  and  may  be  ex- 
plained, modified  or  varied,  or  even  entirely  avoided,  for  fraud 
or  mistake,  and  this  by  parol  proof.  But  so  far  as  the  bill  of 
lading  is  a  contract  between  the  parties  that  the  carrier  will 
carry  the  goods  to  the  place  of  destination  designated  in  the 
bill  and  deliver  them  to  the  persons  named,  as  the  consignee  or 
his  order,  or  as  to  any  other  contract  or  stipulation  contained 
in  the  bill,  it  is  subject  to  the  law  of  evidence  governing  writ- 
ten contracts  and  cannot  be  changed,  altered  or  varied  by 
parol  proof.  So,  where  no  goods  were  actually  delivered  to  the 
carrier  at  the  time  of  the  issuing  of  the  bill  of  lading,  but 
through  fraud  and  collusion  the  shipper  and  the  agent  of  the 
carrier  falsely  represent  that  goods  have  been  delivered,  it  has 
been  frequently  held  that  the  carrier  would  not  be  liable  for 
the  goods  described  in  the  bill,  and  this  though  the  statutes 
of  the  state  forbid  the  issuing  of  a  bill  of  lading  unless  the 
goods  described  in  it  were  actually  in  the  possession  of  the 
carrier  at  the  tirae.^ 

Pollard  V.  Vinton'^  was  a  case  where  a  bill  of  ladins:  was 
made  and  delivered  for  a  quantity  of  cotton  in  the  usual  form. 
The  parties  to  whom  it  was  delivered  immediately  drew  a 
draft  on  the  plaintiffs  in  New  York,  payable  at  sight,  with  bill 
of  lading  attached,  which  draft  was  accepted  and  paid.  No 
cotton  was  shipped  on  the  steamboat  or  delivered  on  the  wharf, 

1  St.  Louis,  etc.  R.  Co.  v.  Insurance  signed  a  bill  of  lading  for  thirty-two 
Co..  189  U.  S.  223;  The  Wellington,  bales  of  cotton  which  were  not  on 
1  Biss.  279.  "A  bill,  so  far  as  it  is  a  hand  and  were  never  delivered  to 
contract,  cannot  be  affected  by  pa-  the  railroad  company  or  any  agent 
rol,  though  subject  to  explanation  for  it.  The  plaintiffs  paid  a  draft 
as  a  receipt."  McTyre  v.  Steel,  26  for  the  price  of  the  cotton  on  the 
Ala.  487;  O'Brien  v.  Gilchrist,  34  Me.  faith  of  the  bill  of  lading  attached 
5.j4;  Witzler  v.  Collins,  70  Me.  290,  85  to  it  and  indorsed  to  them,  and  never 
Am.  Rep.  327.  But  where  a  bill  of  having  received  the  cotton  sued  the 
lading  expressly  provides  that  goods  railroad  company  for  its  non-deliv- 
named  therein  may  be  carried  on  ery."  Held,  "that  the  carrier  was 
deck,  parol  evidence  is  inadmissible  not  estopped  to  show  that  no  cotton 
to  show  that  the  shipper  agreed  that  was  in  fact  delivered  for  transporta- 
an  additional  portion  of  the  goods  tion;  that  the  agent  had  no  author- 
should  be  so  carried.  Saward  v.  Ste-  ity,  real  or  apparent,  to  sign  a  receipt 
veris,  G9  Mass.  97.  or  bill  of  lading  until  actual  delivery 

-lO-')   U.  S.  7:  Robinson    et    al.  v.  of  the  cotton,  and  the  company  was 

Memphis,  etc/  R.  Co.,  9  Fed.  129.   'The  not  liable." 
freight  agent  of  .i  railroad  company 

423 


§   402.]  CARRIERS.  [part    V. 

or  to  its  agent  for  shipment,  as  stated  in  the  bill  of  lading,  the 
statement  to  that  effect  being  untrue.  The  plaintiff,  upon 
whom  the  draft  was  drawn  and  the  bill  assigned,  having  paid 
the  draft,  brought  suit  against  the  owner  of  the  steamboat. 
The  court  in  its  opinion  say:  "A  bill  of  lading  is  an  instru- 
ment well  known  in  commercial  transactions,  and  its  charac- 
ter and  effect  have  been  defined  by  judicial  decisions.  In  the 
hands  of  the  holder  it  is  evidence  of  ownership,  special  or  gen- 
eral, of  the  property  mentioned  in  it,  and  of  the  right  to  re- 
ceive said  property  at  the  place  of  delivery.  Notwithstanding 
it  is  designed  to  pass  from  hand  to  hand,  with  or  without  in- 
dorsement, and  it  is  efficacious  for  its  ordinary  purposes  in  the 
handsof  the  holder,it  is  not  a  negotiable  instrument  or  obligation 
in  the  sense  that  a  bill  of  exchange  or  a  promissory  note  is. 
Its  transfer  does  not  preclude,  as  in  those  cases,  all  inquiry  into 
the  transaction  in  which  it  originated,  because  it  has  come  into 
the  hands  of  persons  who  have  innocently  paid  value  for  it. 
The  doctrine  of  hona  fide  purchasers  applies  to  it  only  in  a 
limited  sense.  It  is  an  instrument  of  a  twofold  character.  It 
is  at  once  a  receipt  and  a  contract.  In  the  former  character 
it  is  an  acknowledgment  of  the  receipt  of  property  on  board 
his  vessel  by  the  OAvner  of  the  vessel.  In  the  latter  it  is  a 
contract  to  carry  safely  and  deliver.  The  receipt  of  the 
goods  lies  at  the  foundation  of  the  contract  to  carr}'  and 
deliver.  If  no  goods  are  actually  received,  there  can  be 
no  valid  contract  to  carry  or  to  deliver.  To  these  ele- 
mentar}'^  truths  the  reply  is  that  the  agent  of  defendant 
has  acknowledged  in  writing  the  receipt  of  the  goods,  and 
promised  for  him  that  they  should  be  safely  delivered,  and 
that  the  principal  cannot  repudiate  the  act  of  his  agent  in  this 
matter,  because  it  was  within  the  scope  of  his  employment.  It 
will  probably  be  conceded  that  the  effect  of  the  bill  of  lading 
and  its  binding  force  on  the  defendant  is  no  stronger  than  if 
signed  by  himself  as  master  of  his  own  vessel.  In  such  case  we 
think  the  proposition  cannot  be  successfully  disputed  that  the 
person  to  whom  such  a  bill  of  lading  was  first  delivered  cannot 
hold  the  signer  responsible  for  goods  not  received  by  the  car- 
rier. .  .  .  Before  the  power  to  make  and  deliver  a  bill  of 
lading  could  arise,  some  person  must  have  shipped  goods  on 
the  vessel.     Only  then  could  there  be  a  shipper,  and  only  then 

424 


■CH.  v.]  FIXING    LIABILITY BILL    OF    LADING.  [§  402. 

could  there  be  goods  shipped.  In  saying  this  we  do  not  mean 
that  the  goods  must  have  been  actually  placed  on  the  deck  of 
the  vessel.  If  they  came  within  <the  control  and  custody  of 
the  officers  of  the  boat  for  the  purpose  of  shipment,  the  con- 
tract of  carriage  had  commenced,  and  the  evidence  of  it  in  the 
form  of  a  bill  of  ladino;  would  be  bindino^.  But  without  such 
a  delivery  there  was  no  contract  of  carrying,  as  the  agents 
of  defendant  had  no  authority  to  make  one.  They  had  no 
authority  to  sell  cotton  and  contract  for  delivery.  They 
had  no  authority  to  sell  bills  of  lading.  They  had  no  power 
tb  execute  these  instruments  and  go  out  and  sell  them  to  pur- 
chasers. ISTo  man  had  a  right  to  buy  such  a  bill  of  lading  of 
them  who  had  not  delivered  them  the  goods  to  be  shipped." 

The  court  say,  further,  citing  The  Schooner  Freeman;  Ilickox 
V.  Buckingham:^  "In  that  case  the  schooner  was  libeled  in 
admiralty  for  failing  to  deliver  flour  for  which  the  master  had 
given  two  bills  of  lading,  certifying  that  it  had  been  delivered 
on  board  the  vessel  at  Cleveland  to  be  carried  to  Buffalo  and 
safely  delivered.  The  libelants,  who  resided  in  the  cit}^  of 
New  York,  had  advanced  money  to  the  consignee  on  these  bills 
•of  lading,  which  were  delivered  to  them.  It  turned  out  that 
no  such  flour  had  been  shipped,  and  that  the  master  had  been 
induced,  by  the  fraudulent  orders  of  a  person  in  control  of  the 
vessel  at  the  time,  to  make  and  deliver  the  bills  of  lading  to 
him,  and  that  he  had  sold  the  drafts  on  which  libelants  had 
paid  the  money  and  received  the  bills  of  lading  in  good  faith. 
A  question  arose  how  far  the  claimant,  who  was  the  real  owner 
•of  the  vessel,  could  be  bound  by  the  acts  of  the  master  appointed 
by  one  to  whom  he  had  confided  the  control  of  the  vessel; 
and  the  court  held  that,  having  consented  to  this  delivery  of 
the  vessel,  he  was  bound  bj^  all  the  acts  by  which  a  master 
could  lawfully  bind  a  vessel  or  its  owner."  The  court  in  fur- 
ther discussing  the  question  say:  "Even  if  the  master  had  been 
appointed  by  the  claimant,  a  wilful  fraud  committed  by  him 
on  a  third  person,  by  signing  false  bills  of  lading,  would  not 
be  within  his  agency.  If  a  signer  of  a  bill  of  lading  was  not 
the  master  of  the  vessel,  no  one  would  suppose  the  vessel  bound ; 
and  the  reason  is,  because  the  bill  is  signed  by  one  not  in  priv- 
ity with  the  owner.     But  the  same  reason  applies  to  a  signa- 

1 18  How.  18-3. 


§  4f'i2.]  CARRIERS.  [part    V, 

tore  made  by  a  master  out  of  the  course  of  his  employment. 
The  taker  assumes  the  risk,  not  only  of  the  genuineness  of  the 
signature,  and  of  the  fact  that  the  signer  was  master  of  the 
vessel,  but  also  of  the  apparent  authority  of  the  master  to 
issue  the  bill  of  lading.  We  say  the  apparent  authority,  be- 
cause any  secret  instructions  t)y  the  owner,  inconsistent  with 
the  authority  with  which  the  master  appears  to  be  clothed, 
would  not  affect  third  persons.  But  the  master  of  a  vessel 
has  no  more  apparent  authority  to  sign  bills  of  lading  than  he 
has  to  sign  bills  of  sale  of  the  ship.  He  has  an  apparent  au- 
thority, if  the  ship  be  a  general  one,  to  sign  bills  of  lading  for 
cargo  actually  shipped;  and  he  has  also  authority  to  sign  a. 
bill  of  sale  of  the  ship,  when,  in  case  of  disaster,  his  power  of 
sale  arises.  But  the  authority  in  each  case,  arises  out  of,  and 
depends  upon,  a  particular  state  of  facts.  It  is  not  an  un- 
limited authority  in  one  case  more  than  in  the  other;  and  his 
act,  in  either  case,  does  not  bind  the  owner,  even  in  favor  of 
an  innocent  purchaser,  if  the  facts  on  which  his  power  de- 
pended did  not  exist;  and  it  is  incumbent  upon  those  who  are 
about  to  change  their  condition,  upon  the  faith  of  his  author- 
ity, to  ascertain  the  existence  of  all  the  facts  upon  which  his- 
authority  depends."  ^ 

1  It  is  said  by  the  court  in  Robins  Eng.  C.  L.  664,  has  withstood  the  as- 

V.  Memphis,  9    fed.   1-39,   "these  au-  saults  upon  it  and  is  established  law. 

thorities    establish    beyond   dispute  It  has  been  approved  by  the  supreme 

that  where  a  master  signs  a  bill  of  court  of  the  United   States,  and  di- 

lading  for  goods  not  received,  or  for  rectly  or  in  principle  by  other  federal 

more  than  are  received,  he  acts  be-  courts."     Vandewater    v.    Mills,    19 

yond  his  authority,  and  the  owner  is  How.  90;  The  Lady  Franklin,  8  Wall, 

not  liable  either  to  the  original  ship-  325;  The  Keokuk,  9  Wall.  517-519; 

per  or  any  assignee  of  the  bill  of  lad-  Buckley  v.  Naumkeag  Co.,  24  How. 

ing,  whether  he  makes  advances  on  386,  392;  The  Loon,  7  Blatchf.  244; 

the  faith  of  it  or  gives  value  for  it  or  The  Edwin,  1  Sprague,  477;  Relyea 

not;  neither  is  the  owner  estopped  v.    Rolling    Mill    Co.,  42   Conn.   579; 

to  show  the  facts  as  they  really  ex-  King  v.  Shepherd,  3  Story,  349,  360; 

1st.      Some  courts  have  reluctantly  Hutchinson   on   Carriers,   sees.    123, 

yielded  to  this  principle,  and  some  124;  Miller  v.  Railroad  Co.,  99  N.  Y. 

have  sought  to  restrict  or  qualify  it  430;  Friedlander  v.  Railway  Co.,  130 

In  the  supposed  interest  of  commer-  U.  S.  460;  Nat.  Bank  v.  Railroad  Co., 

cial    dealing;    but    in    England,    al-  44  Minn.  224.     In  Gibbons  v.  Robin- 

though  a  statute  makes  the  Individ-  son.  63  Mich.  146.  the  court  held:  "A 

ual   signing  the  bill  of  lading  liable,  bill  of  lading  constitutes  a  contract 

it  goes  no  further,  and  the  doctrine  between  the  parties  thereto,  and  is 

of  Grant  v.  Norway,  10  C.  B.  665,  70  evidence  of  the  receipt  of  the  goods^ 

426 


i 


CH.  v.]  FIXING    LIABILITY  —  BILL    OF    LADING.  [§  4:03. 

§  4G3.  Authorities  not  entirely  harmonious. —  While 

it  would  seem  that  the  great  weight  of  authority  is  as  stated 
in  the  text  and  cases  just  cited,  there  is,  however,  a  very  re- 
spectable line  of  cases  holding  that  where  a  third  party,  rely- 
ing upon  the  statement  of  the  carrier  in  the  bill  of  lading,  has 
invested  his  money  by  way  of  paying  the  draft  attached  to  the 
bill,  the  carrier  is  estopped  from  denying  the  facts  stated 
in  the  bill.  These  courts  do  not  base  their  holding  upon  the 
negotiability  of  the  bill  of  lading,  but  upon  the  ground  of  es- 
toppel in  pais. 

The  supreme  court,  in  Broohs  v.  Bailway  Co.}  say:  "As  be- 
tween principal  and  third  parties,  the  true  limit  of  the  agent's 
authority  to  bind  the  former  is  the  apparent  authority  with 
Avhich  the  agent  is  invested ;  but,  as  between  the  principal  and 
the  agent,  the  true  limit  is  the  express  authority  or  instruction 
given  to  the  agent.  The  principal  is  bound  by  all  the  acts  of 
his  agent  within  the  scope  of  the  authority  which  he  held  him 
out  to  the  world  as  ^  ossessing,  notwithstanding  the  agent  acted 
contrary  to  instructions;  and  this  is  especially  the  case  with 
officers  and  agents  of  corporations.  Since  a  corporation  acts 
only  through  agents,  it  is  bound  by  its  agents'  contracts  when 
made  ostensibly  within  the  range  of  their  office.  One  who 
authorizes  another  to  act  for  him  in  a  certain  class  of  contracts 
undertakes  for  the  absence  of  fraud  in  the  agent  acting  within 

of  their  condition  when  received,  of  Peck,  28    N.  Y.   290;    Baltimore  v. 

the    contract    of    carriage,   and    to  Brown,  54  Pa.  St.  77;  Glass  v.  Gold- 

whom  they  are  to  be  delivered.     It  smith,  22  Wis.  488.  But  see  St.  Louis 

is  not.  however,  conclusive  evidence  &  S.  F.  R.  Co.  v.  Adams,  4  Kap.  App. 

of  such  receipt  or  condition  between  305,  45   Pac.  920,   where   the    court 

the  owner  and  shipper,  but  so  far  as  lield  that  "  railroad   companies  are 

it  is  an  undertaking  to  transport  and  estopped  from  denying  the  recitals 

deliver   the  goods  as  therein   stipu-  in  the  bill  that  the  consignment  had 

hited,  in  the  absence  of  fraud  or  mis-  in  fact  been  received."     Also  Smith 

take,  its  terms  cannot  be  altered  or  v.  Missouri  Pac.  R.  Co.,  74  Mo.  Ai)p.  48, 

varied  by  parol  proof  where  it  forms  where  it  was  held  "that  as  against  a 

the   basis  or  subject-matter  of  an  bona  fide  holder,  where  the  bill  of 

action  between  the  parties  to  the  lading  was  issued  by  a  railroad  com- 

contract."    Pereira  v.  Cent.  Pac.  R.  pany,  the  ciompany  is  estopped  from 

Co.,  ()6Cal.  92;  Bissell  V.  Price,  16  111.  denying   that   the   goods   were    not 

408;  Chapin  v.  Chicago,  etc.  R.  Co.,  79  actually  received  by  the  comijany." 
Iowa,  582;  Kirkman  v.  Bowman,  8        i  108  Pa.  St.  529;  Adams  Exp.  Co. 

Rob.  (La.)  246;  Atwell  v.  Miller,  11  v.  Schlessinger.  75  Pa.  St.  246;  Evans' 

Md.  348,  69  Am.  Dec.  206;  Meyer  v.  Agency,  594,  606,  193. 

427 


§  463.]  CARRIERS.  [part    V. 

the  scope  of  his  authority.  The  authority  of  an  agent  to  act 
for  and  bind  his  principal  will  be  implied  from  the  accustomed 
performance  by  the  agent* of  acts  of  the  same  general  charac- 
ter for  the  principal  with  his  knowledge  and  consent.  These 
elementary  principles  are  founded  on  the  doctrine  that  where 
one  of  two  persons  must  suffer  by  the  act  of  a  third  person,  he 
who  has  held  that  person  out  as  worthy  of  trust  and  confidence, 
and  as  having  authority  in  that  matter,  should  be  bound  by 
it.  It  is  conceded  in  this  case  that  the  company  did  not  au- 
thorize the  issuance  of  bills  of  lading  without  receipt  of  the 
goods,  but  it  put  the  agent  in  its  place  to  do  that  class  of  acts, 
and  it  should  be  answerable  for  the  manner  in  which  he  con- 
ducted himself  within  the  range  of  his  agency.  Public  policy, 
as  well  as  the  ultimate  good  of  corporations  themselves,  re- 
quires that  this  should  be  the  rule." 

In  a  case  in  the  New  York  court,  where  bills  of  lading  were 
issued  for  a  quantity  of  lard  consigned  to  the  plaintiff,  the  con- 
signor drawing  upon  the  plaintiff  with  the  bill  of  lading  at- 
tached, and  upon  the  faith  of  the  bill  of  lading  the  drafts  were 
paid,  but  no  lard  was  ever  received  by  the  railroad  company, 
the  court  held  that,  as  the  agent  had  authority  to  issue  bills  of 
lading  for  goods  received  for  shipment,  the  bills  in  question 
being  in  the  usual  form,  the  agent  must  be  considered  as  hav- 
ing the  necessary  authority.^ 

1  Armour  et  al.  v.  Mich.  Cent.  R.  It  is  now  well  settled  that  fraud  is 

Co.,  65  N.  Y.  111.    The  court  say:  not  necessary  to  constitute  a  case  of 

"  They  were  issued  with  the  expecta-  estoppel.   Though  the  defendant  was 

tion  that  they  would  be  acted  upon  induced  by  the  fraud  or  mistake  of 

by  bankers  or  other  capitalists.     It  Michaels  to  issue  these  bills,  that  is 

cannot  complain  if  the  bills  accom-  immaterial.     Its  liability  depends  on 

plished  the  purpose  for  which  they  tlie  fact  that,  no  matter  what  its  in- 

were  designed.     The  representations  ducements   may   have   been,  it   has 

in  the  bills  were  made  to  anj'  one  made  certain  representations  upon 

who,  in  the  course  of  business,  might  which  the  plaintiffs  have  advanced 

think  fit  to  make  advances  on  the  their  money  in  good  faith.     If  the 

faith  of  them.    There  is  thus  present  defendant  placed  undue  confidence 

every   element  necessary  to  consti-  in  Michaels,  it  is  but  the   familiar 

tute  a  case  of  estoppel  in  x>ais,  a  case  of  imposing  the  burden  upon 

representation  made  witli  the  knowl-  him  who  unwisely  Qr  unguardedly 

edge  that  it  might  be  acted  upon,  reposed  the  confidence."    Brown  v. 

and    subsequent    action    upon    the  Bowen,  30  N.  Y.  519;  Mfg.  &  Traders' 

faith  of  it  to  such  an  extent  that  it  Bank  v.  Hazard,  id.  22G;  Shapley  v. 

would   injure   the   plaintiffs   if   the  Abbott.  42  id.  443;  Rawls  v.  Deshler, 

representation  was  not  made  good.  4  Abb.  Ct.  App.  12;  Batavia  Bank  v. 

428 


i 


Cir.  Y.J  FIXING    LIABILITY—     TJLL    OF    LADING.       [§§401,405. 

§  464.  Conclusiveness  as  to  condition,  weight,  contents  or 

Talue. —  The  carrier,  it  may  be  said,  as  a  rule,  is  not  supposed 
to  know  the  condition  of  the  contents  of  packages  or  boxes  of 
goods  brought  to  him  for  shipment;  he  can  only  determine  that 
as  to  their  external  appearance  they  are  in  good  condition,  and 
so  if  their  condition  is  found  to  have  been  otherwise  on  account 
of  natural  decay,  or  propensities  of  the  goods  delivered,  that 
they  have  spoiled  or  wasted  because  of  leakage,  or  on  account 
of  unskilful  packing,  or  even  that  they  were  not  in  good  con- 
dition at  the  time  they  were  delivered,  these  facts  may  be 
shown  and  the  carrier  excused  from  liabilitj''.  But  if  the  loss 
or  damaged  condition  was  the  result  of  the  carrier's  own  neg- 
ligence, and  this/fact  can  be  shown,  then  of  course  he  would  be 
liable. 

In  Richards  et  al.  v.  Doe  et  al}  it  was  held  "  that  a  recital  by 
the  defendants  in  the  bill  of  lading  that  the  goods  were  received 
in  good  order  and  condition,  though  prima  facie^  is  not  conclu- 
sive evidence  that  the  goods  were  free  from  internal  injuries." 
The  carrier  may  no  doubt  bind  himself  by  the  bill  of  lading  so 
as  to  become  liable  as  to  weight  or  contents,  or  even  value  of 
the  goods,  but  usually  he  excludes  liability  in  this  respect  by 
words  of  limitation ;  that  is,  reciting  in  the  bill  of  lading  or  the 
shipping  bill  that  as  to  contents  or  the  value  of  the  goods, 
or  weight,  it  is  unknown.  And  so  it  may  be  said  as  a  general 
rule,  that,  as  between  the  original  parties,  the  bill  is  merely 
prima  facie  evidence  as  to  weight  ov  quantity,  and  not  con- 
clusive, and  that  the  carrier  may  show  by  parol  evidence  that 
a  smaller  quantity  was  actually  received,  or  the  shipper  may 
show  that  the  carrier  received  a  larger  quantity.^ 

§  465.  By  whom  issued. —  The  bill  of  lading  may  be  issued 
by  the  carrier  or  his  duly  authorized  agent.  It  is  not  neces- 
sary that  there  should  be  any  particular  form  of  appointment; 
the  principles  of  the  law  of  agency  will  apply,  Eatification  on 
the  part  of  the  carrier,  knowing  all  the  facts  as  to  the  acts  of  one 

N.  Y.  R.  Co..  100  N.  Y.  195,  GO  Am.  Mich.  206;  Ryder  v.  Hall,  7  Allen,  456; 

Rep.  440.  Meyer  v.  Peck,  28  N.  Y.  590;  Dean  v. 

1 100  Mass.  524.  King.  22  Ohio  St.  118;  Chapin  v.  Chi- 

2  The  Lady  Franklin,  8  Wall.  (U.  S.)  cago  R.   Co.,  79  Iowa,  582,  42  Am.  & 

325;  The    Ethel,   59   Fed.    Rep.   473;  Eng.  R.  Cases,  542. 

Strong  V.  Grand  Trunk  R.  Co.,  15 

429 


§  465.]  CARRIERS.  [part    V. 

claiming  to  act  in  behalf  of  the  carrier,  will  be  considered  to 
be  a  sufficient  appointment.  The  master  of  a  vessel,  because 
of  the  nature  of  his  appointment,  has  been  held  to  have  author- 
ity to  receive  freight  and  issue  a  bill  of  lading  therefor.^  The 
person  issuing  the  bill  of  lading  must  have  authority  to  sign 
the  carrier's  name  to  the  bill,  for  the  bill  must  be  signed  by  the 
carrier  or  some  one  by  him  duly  authorized  before  it  can  have 
any  binding  effect. 

1  Costello  V.  Laths,  44  Fed  105;  The  Mary  Bradford,  18  Fed.  189. 

430 


CHAPTER  YI. 


LIABILITY   AND    LIMITATIONS   UPON   THE   LIABILITY   OF  THE 
COMMON  CARRIER. 


§  466.  Liability  of  the  common  car- 
rier. 

467.  Reasons  for  extraordinary  lia- 

bility. 

468.  Inanimate  and  animate 

freight. 

I.  When   the  Loss   or  Injury  is 
Caused  by  the  Act  of  God. 

469.  The  act  of  God. 

470.  Does    not  always  excuse  the 

carrier  from  all  care. 

471.  The  act  of  God  must  be  the 

conclusive  and  proximate 
cause. 

472.  What  will  and  what  will  not 

excuse  —  Summary. 

473.  Burden  of  proof. 

IL  By  the  Public  Enemy. 

474.  The  public  enemy. 

475.  The  diligence  required  on  the 

part  of  the  carrier. 

476.  Diligence,    even  though    the 

property  is  injured  or  de- 
stroyed after  the  event  has 
occurred. 

477.  Strikers,  rioters  and  robbers 

not  the  public  enemy. 

III.  Where  the  Loss  or  Injury  is 
the  Result  of  the  Acts  op 
THE  Shipper. 

478.  Reasons  of  the  liability  of  the 


482. 


483. 


479.  Contributory  negligence. 

480.  Improperly  marking  goods  by 

the  consignor. 

481.  Goods  improperly  marked  or 

loaded. 

Neglect  of  the  shipper  to  dis- 
close contents  or  value. 

Loss  from  mistake  or  inter- 
meddling on  the  part  of  the 
shipper. 

484.  Negligence  of  the  carrier. 

IV.  Where  the  Loss  or  Injury  is 
Caused  by  the  Inherent 
Nature  of  the  Goods. 

485.  The  exception. 

486.  Animate  freight. 

V.  Carrying  of  Live  Stock. 

487.  The  exception  applies. 

488.  Michigan  rule. 

489.  The  duty  of  the  common  car- 

rier. 

490.  Statutes  of  United  States  with 

reference  to  duties  of  the 
carrier. 
The  shipper  must  deal  fairly 
with  the  carrier. 


491. 


VL  When  the  Loss  or  Injury  is 
Occasioned  from  the  Ex- 
ercise OF  Public  Author- 
ity. 
492.  The  reasons  for  the  exception. 


§  460,  Liability  of  the  common  carrier. — Common  carriers 
belong  to  the  extraordinary  class  of  bailments,  and  though 
many  of  the  reasons  in  which  their  extraordinary  liability  had 
its  origin  have  long  since  ceased  to  exist,  nevertheless  the  ex- 
traordinary liability  still  continues  with  but  slight  variance. 


^407.]  CARRIERS.  [part    V, 

The  common-law  liabilit}"  of  the  common  carrier  of  goods  is 
that  of  an  insurer  against  loss  or  injury  of  the  property  while 
in  his  custody  or  under  his  control  as  a  common  carrier,  ex- 
cept (1)  where  the  loss  or  injury  is  caused  by  the  act  of  God; 
or  (2)  by  the  public  enemy.  To  these  exceptions,  which  have 
long  been  exceptions  by  the  common  law,  the  more  modern 
adjudications  have  added  three  others:  (3)  when  the  loss  or  in- 
jury is  the  result  of  the  acts  of  the  shipper;  or  (4)  caused  by 
the  inherent  nature  of  the  goods;  or  (5)  from  public  authority. 

§  467.  Reasons  for  extraordinary  liability. —  The  reasons 
for  the  extraordinary  liability  were  discussed  by  Lord  Holt  in 
the  celebrated  case  of  Coggs  v.  Barnard^  in  this  language: 
"  The  law  charges  this  person  (the  carrier),  thus  intrusted  to 
carry  goods,  against  all  events  but  acts  of  God  and  of  the  ene- 
mies of  the  king.  -  For,  though  the  force  be  never  so  great,  as 
if  an  irresistible  multitude  of  people  should  rob  him,  neverthe- 
less he  is  chargeable.  And  this  is  a  politic  establishment,  con- 
trived by  the  policy  of  the  law  for  the  safety  of  all  persons,  the 
necessity  of  whose  affairs  obliges  them  to  trust  these  sorts  of 
persons,  that  they  may  be  safe  in  their  ways  of  dealing;  for  else 
these  carriers  might  have  an  opportunity  of  undoing  all  per- 
sons that  had  any  dealings  with  them,  by  combining  with 
thieves,  etc.;  and  yet  doing  it  in  such  a  clandestine  manner 
as  would  not  be  possible  to  be  discovered.  And  this  is  the 
reason  the  law  is  founded  upon  in  that  point." 

Mr.  Chief  Justice  Best,  in  Riley  v.  i7(?nj(?,- commenting  upon 
the  foundation  of  the  rule  in  its  bearings  upon  the  commercial 
interests  of  the  country,  said:  "  When  goods  are  delivered  to  a 
carrier,  they  are  usually  no  longer  under  the  eye  of  the  owner; 
he  seldom  follows  or  sends  any  servants  with  them  to  the  place 
of  their  destination.  If  they  should  be  lost  or  injured  by  the 
grossest  negligence  of  the  carrier  or  his  servants,  or  stolen  by 
them,  or  by  thieves  in  collusion  with  them,  the  owner  would 
be  unable  to  prove  either  of  these  causes  of  loss.  His  witnesses 
must  be  the  carrier's  servants;  and  the}^,  knowing  that  they 
could  not  be  contradicted,  would  excuse  their  masters  and 
themselves.  To  give  due  security  to  property,  the  law  has 
added  to  that  responsibility  of  a  carrier,  which  immediately 

1  2  Lord  Raymond,  909.  2  5  Bing.  217. 

432 


CH.  VI,]  LIMITATIONS    UPON    LIABILITY.  [§  468. 

arises  out  of  his  contract  to  carry  for  a  reward,  namely,  that 
of  taking  all  reasonable  care  of  it,  the  responsibility  of  an  in- 
surer. From  his  liability  as  an  insurer,  the  carrier  is  only  to  be 
relieved  by  two  things,  both  so  well  known  to  all  the  country 
when  they  happen,  that  no  person  would  be  so  rash  as  to  at- 
tempt to  prove  that  they  had  happened  when  they  had  not, — 
namely,  the  act  of  God  and  the  king's  enemies." 

Judge  Story,  discussing  the  liability,  says: ^  "In  questions,, 
therefore,  as  to  the  liability  of  the  carrier,  the  point  ordinarily 
is  not  so  much  whether  he  has  been  guilty  of  negligence  or 
not,  as  whether  the  loss  comes  within  either  of  the  excepted 
cases.  I*^ot  but  that,  if  the  carrier  is  actually  guilty  of  negli- 
gence, he  will  be  liable  for  a  loss,  which  otherwise  might  be 
deemed  a  loss  by  an  inevitable  casualty." 

§  468.  Inanimate  and  animate  freight. —  From  the 

statement  of  the  exceptions  or  limitations  to  the  liability  of 
the  common  carrier  it  will  be  noticed  that  the  extent  of  the 
liability  and  the  application  of  the  rules  of  limitation  must  be 
largely  affected  by  the  kind  of  goods  that  are  being  transported. 
If  the  freight  is  inanimate  it  can  be,  and  is,  subjected  to  the 
entire  control  of  the  carrier;  he  can  lay  it  away  in  his  vehicle 
where  he  chooses,  and  to  his  will  and  desire  in  this  respect  there 
is  no  opposition  or  restraint.  A  load  of  grain  in  sacks  may 
be  piled  into  one  of  the  carrier's  cars  or  vehicles,  and  if  well 
loaded,  and  there  are  no  mishaps  in  the  transit,  the  goods  at 
the  end  of  the  journey  will  be  found  in  the  same  place  and  in 
the  same  condition  as  when  they  started  in  transit;  but  if  the 
freight  is  animate,  very  different  results  may  be  looked  for.  If, 
for  example,  it  be  a  load  of  horses  or  cattle  stowed  into  a  car, 
they  become  nervous  and  discontented,  and  often  injure  each 
other.  The  very  fact  that  they  possess  life  is  an  added  ele- 
ment of  uncertainty  in  the  safety  of  their  transportation,  and 
so  much  does  this  change  the  nature  of  the  liability  that  some 
of  the  courts  have  held  that  live  animals  are  not  goods  and 
merchandise,  and  that  the  carrier's  liability  in  transporting 
them  is  not  the  extraordinary  common-law  liability;  that  this 
extraordinary  liability  that  attaches  in  case  of  inanimate  freight 
does  not  apply  in  case  of  animate  freight.    Upon  this,  however, 

1  Story  on  Bailm.,  sec.  492. 
28  483 


§  469.]  CAKEIEES.  [PAKT   V, 

there  is  a  diversity  of  opinion,  the  weight  of  authority  hold- 
ing, as  we  shall  see,  that  the  liability  is  the  extraordinary  liabil- 
ity, limited  only  by  the  inherent  nature  of  the  freight.^ 

SECTioisr  I. 
"When  the   Loss  or  Injury  is   Caused  by  the  Act  or   God. 

§  469.  The  act  of  God. —  It  is  sometimes  very  difficult  to  de- 
termine what  is  and  what  is  not  the  act  of  God.  There  has 
been  a  great  deal  of  discussion  among  the  courts  and  authors 
with  reference  to  this  subject.  The  definition  that  is  perhaps 
as  often  used  as  any  is  that  of  Anderson.  An  act  of  God  is 
defined  to  be  "  such  inevitable  accident  as  cannot  be  prevented 
by  human  care,  skill  or  foresight,  but  results  from  natural 
causes,  such  as  lightning,  tempest,  floods  and  inundations  — 
something  superhuman,  or  something  in  opposition  to  the  act 
of  man."^ 

The  supreme  court  of  the  United  States,  in  The  Majestic^ 
have  quoted  with  approval  Chancellor  Kent :  " '  The  act  of  God,' 
said  Chancellor  Kent,  '  means  inevitable  accident,  without 
the  intervention  of  man  and  public  enemies; '  and  again,  that 
'  perils  of  the  sea  denote  natural  accidents  peculiar  to  that  ele- 
ment, which  do  not  happen  by  the  intervention  of  man,  nor 
are  to  be  prevented  by  human  prudence.  It  is  a  loss  happen- 
ing in  spite  of  all  human  effort  and  sagacity.'  The  words 
'  perils  of  the  sea '  may,  indeed,  have  grown  to  have  a  broader 
signification  than  '  the  act  of  God,'  but  that  is  unimportant 
here."  And  further,  from  Judge  Parsons:  "  the  '  act  of  God  '  is 
limited,  as  we  conceive,  to  causes  in  which  no  man  has  any 
agency  whatever;  because  it  was  intended  never  to  raise,  in 

i"The  liability  of  a  common  car-  pany,  for  an  agreed  compensation, 
rier  of  goods  is  that  of  an  insurer,  and  undertakes  to  carry  goods  and  de- 
in  cases  of  loss  no  excuse  avails  such  liver  them  at  destiuation,  it  is  respon- 
carrier  unless  occasioned  by  the  act  sible  for  their  loss  irrespective  of 
of  God  or  public  enemy."  Central  R.  liability  as  a  common  carrier.  Trim- 
Co.  V.  Lippman,  110  Ga.  665.  Com-  ble  v.  New  York  Co.,  57  N.  Y.  Sup. 
mon  carriers  of  freight  are  liable  for  437. 

any  damage  not  caused  by  the  act  of  2  McHenry  v.  Philadelphia  R.  Co., 

God  or  the  public  enemy,  and  are  in-  4  Harr.  (Del)  449;   Chicago,  etc.  R. 

surers.     Grand  Rapids  &  Ind.  R.  Co.  Co.  v.  Sawyer,  69  111.  289;   And.  Die. 

V.  Huntley,  38  Mich.  537;    Reed  v.  23;  Express  Co.  v.  Jackson,  92  Tenn. 

Wilmington  Steamboat  Co.,  40  AtL  326. 

955  (Del.).     Where  a  railroad  com-  3 166  U.  S,  375. 

434 


CH.  YI.]  LIMITATIONS    UPON    LIABILITY.  [§  4:70. 

the  case  of  the  common  carrier,  the  dangerous  and  difficult 
question  whether  he  actually  had  any  agency  in  causing  the 
loss;  for,  if  this  were  possible,  he  should  be  held."  And  so  an 
unprecedented  flood  by  reason  of  which  the  baggage  of  a  pas- 
senger was  swept  away  was  held  to  be  an  act  of  God.'  And  in 
Long  V.  Pennsylvania  R.  Co?  it  was  held :  "  That  the  Johnstown 
flood  in  1889,  which  was  of  such  extraordinar}'^  character  that 
a  party  was  not  bound  to  anticipate  or  provide  against  it,  and 
which  came  with  such  suddenness  and  power  that  escape  from 
it  was  impossible,  was  an  inevitable  accident  or  act  of  God  in 
respect  to  the  loss  of  baggage  on  a  railroad  train  where  the 
utmost  care  was  exercised  by  the  agents  and  employees  of  the 
carrier  to  escape  the  dangers  of  which  they  had  knowledge  or 
reasonable  grounds  of  apprehension." 

§  470.  Does  not  always  excuse  the  carrier  from  all  care. 
"While  the  act  of  God,  or  such  inevitable  accident  as  is  defined 
to  be  the  act  of  God,  will  exempt  the  common  carrier  from 
the  extraordinary  liability  that  the  common  law  imposes  upon 
him  in  case  of  loss  or  injury  of  the  property,  it  cannot  be  said 
to  be  an  absolute  excuse  for  all  care  or  diligence  upon  the  part 
of  the  carrier.  If  the  goods  are  entirel}'  destroyed  by  reason 
of  the  act  of  God,  and  the  destruction  was  occasioned  where 
there  was  no  possibility  of  escaping  the  result,  or  any  portion 
of  it,  it  might  be  said  that  the  defense  would  be  a  complete 
defense  to  an  action  against  the  carrier;  but  if  the  destruction 
is  not  total,  then,  while  the  carrier  may  be  excused  from  the 
same  liability,  the  law  imposes  upon  him  the  duty  of  using  or- 
dinary diligence  in  preserving  and  caring  for  the  property  that 
is  not  entirely  destroyed  and  is  still  in  his  custody.  As  where 
a  shipper  shipped  with  the  plaintiff  a  carload  of  hogs,  and 
the  train  upon  which  the  car  was  being  drawn  was  blocked  by 
a  snow  storm,  and  detained  upon  the  track  for  some  time, 
during  which  time  sixteen  of  the  hogs  died,  it  was  held  that 
while  the  train  was  undoubtedly  detained  by  reason  of  the 

1  Wald  V.  Pittsburg  R.  Co.,  163  111.  and  unexpected.  People  v.  Utica 
545,  35  L.  R.  A.  356.  Cement  Co.,  22  111.  App.  159;  Bow- 

2  147  Pa.  St.  343,  14  L.  R.  A.  741.  A  man  v.  Teall,  23  Wend.  306;  Parsons 
storm  or  freshet,  to  constitute  an  act  v.  Hardy,  14  Wend.  215;  Harris  v. 
of  Providence,  need  not  be  unprece-  Rand,  4  N.  H.  259;  Crosbey  v.  Fitch, 
dented,  if  it  is  unusual,  extraordinary  12  Conn.  410. 

435 


§  471.]  CARRIERS.  [part   V. 

act  of  God,  notwithstanding  this  fact  it  was  the  duty  of  the 
carrier  to  exercise  ordinary  care  in  taking  care  of  the  property 
under  all  the  circumstances,^  and  if  he  fails  to  do  so,  he  is  lia- 
ble for  the  loss  resulting  therefrom. 

§  471.  The  act  of  God  must  be  the  conclusive  and  prox- 
imate cause.— If  the  loss  or  injury  was  the  result  in  th& 
slightest  degree  of  any  human  action,  or  any  admixture  of 
human  means  with  that  which  is  determined  to  be  the  act  of 
God,  in  such  case  the  carrier  could  not  be  excused  but  would 
be  held  to  the  extraordinary  liability.  If  the  carrier  has  been 
guilty  of  any  previous  negligence  or  misconduct  which  would 
bring  the  property  in  contact  with  the  destructive  force  of  the 
actus  Dei,  or  unnecessarily  expose  it  thereto,  he  would  not  be 
exempt  from  liability ;  the  loss  or  injury  must  have  been  oc- 
casioned by  the  direct  and  exclusive  cause, — the  act  of  God, —  in 
order  to  exempt  the  carrier.  AVhere  the  plaintiff  brought  suit 
against  the  railroad  company  alleging  the  loss  of  his  trunk 
upon  a  train  destroj^ed  in  the  Johnstown  flood,  while  it  was 
held  that  the  Johnstown  flood  was  unquestionably  an  act 
of  God  and  that  the  trunk  was  destroyed  by  reason  of 
it,  still,  the  court  further  held  that  if  the  trunk  had  gone 
upon  the  same  train  with  the  passenger,  the  plaintiff,  and 
the  train  it  should  have  been  put  upon,  it  would  have  passed 
where  the  flood  occurred  before  it  happened,  and  thus  the 
property  would  not  have  been  destroyed;  holding,  therefore, 
that  the  loss  was  not  entirely  the  result  of  the  act  of  God,  but 
was  probably  caused  by  human  acts.-  And  in  a  case  where  a 
car  was  blown  over  by  a  furious  wind,  and  the  goods  in  the 
car  afterwards  and  almost  immediately  destroyed  by  fire,  it 
was  held  that  the  jury  might  properly  find  that  the  failure  of 
the  carrier  to  rescue  the  goods  from  the  car  which  had  been 
overturned  by  the  force  of  the  wind  before  they  were  con- 
sumed by  fire  was  not  negligence,  where  the  evidence  shows- 
that  the  wind  was  so  strong  as  to  render  it  almost  impossible 
for  men  to  stand  or  walk,  while  the  air  was  so  full  of  dust  and 

1  Black  V.  Chicago,  B.  &  Q.  R.  Co.,  v.  Spaulding,  30  N.  Y.  630,  86  Am. 
30  Neb.  197,  46  N.  W.  428;  Smith  v.  Dec.  426:  McGraw  v.  Baltimore  & 
Railroad  Co.,  91  Ala.  455.  Ohio  R.  Co.,  18  W.  Va.  361,  41  Am. 

^  Wald  V.  Railroad  Co.,  162  111.  545;     Rep.  696. 
M.  C.  R.  Co.  V.  Curtis,  80  111.  384;  Read 

436 


CH.  VI.]  LIMITATIONS    UPON    LIABILITY.  [§  472. 

flying  material  that  scarcely  anything  could  be  seen,  and  that 
the  fire  succeeded  the  overturning  of  the  car  almost  instanta- 
neously, so  that  even  a  messenger  within  the  car  escaped  with 
great  difficulty.^ 

§  472.  What  will  and  what  will  not  excuse  — Snmmary. — 
So  it  may  be  said  that  the  carrier  will  be  excused  beyond  ques- 
tion where  the  loss  Avas  occasioned  solely  b}'-  the  act  of  God; 
such  as  sudden  inundation,  lightning,  fire  by  lightning,  land- 
slides, tornadoes,  or  wind  storms,  earthquakes,  snow  storms  and 
rain  storms,  but  that  he  will  not  be  excused  where  the  fire  is 
not  caused  by  lightning  but  originated  from  some  human 
agency  or  negligence,  nor  will  he  be  excused  even  where  the 
fire  is  blown  along  b}^  a  wind  which  sometimes  arises  and  drives 
it  upon  the  property  which  is  destroyed;  nor  by  explosion  of 
steam  boilers,  although  it  is  necessary  that  steam  boilers  shall 
be  used  for  propelling  the  boats  and  drawing  the  vehicles  of 
the  carrier;  nor  by  collisions,  even  though  the  collision  may 
have  happened  because  of  dense  fog,  or  by  reason  of  a  tempest, 
or  by  severe  storm;  the  theory  being  that  wherever  human 
activity  has  a  part  in  that  which  causes  the  destruction  or  in- 
jury, the  carrier  would  be  liable.  As,  for  example,  where  the 
fire  is  blown  by  the  wind,  or  where  the  boiler  explodes  upon 
the  steamboat,  or  where  the  collision  takes  place  in  a  fog,  the 
boat  or  the  vehicle  is  managed  and  under  the  care  of  human 
agency,  and  the  loss  or  injury  cannot  be  said  to  be  caused  by 
the  act  of  God.' 

1  Blythe  et  al.  v.  Denver,  etc.  R.  Co.,  405.     "  The  act  of  God  which  will  ex- 

15  Colo.  833,  11  h.  R.  A.  615;  Davis  cuse  a  common  carrier  must  be  the 

V.  Wabash,  etc.  R.  Co.,  89  Mo.  349;  proximate  and  not  the  remote  cause 

Chidister  V.  Consolidated  Ditch  Co.,  of   the  loss."     King  v.  Sheplierd,    3 

59  Cal.  202.     "  Where  human  agency  Story,  356.     "The  act  of  God  must 

intervenes,  the  act  of  God  cannot  be  not  only  be  proximate  but  tlie  sole 

sustained  as  a  defense;  as  where  a  cause  of  the  loss."    Wolf  v.  Am.  Ex. 

steamer  was  sunk  by  running  into  a  Co.,  43  Mo.  421.     See  notes  to  Hull  v. 

mast  of  a  sloop,  a  day  or  two  previ-  Chicago  R.  Co.,  41  Minn.  510,  5  L.  R. 

ously;    the  squall   which  sunk  the  A.  587;  Insurance  Co.  v.  Easton,  73 

sloop  was  too  remote."    Merritt  v.  Te.x.  167,  3  L.  R.  A.  424;    liartwell  v. 

Earle,  29    N.  Y.  115.     "Any  act  or  Northern  Pac.  Ex.  Co.,  5  Dak.  463,  3 

omission  on  the  part  of  the  carrier  L.  R.  A.  443;  also  notes,  11  L.  R.  A. 

contributing  to  the  loss  takes  way  615. 

the  protection  of  the  defense  tliat  the        ^  Forward  v.  Pittard,    1   T.  R.  33 

loss  was   occasioned   by  the   act  of  HoUister  v.  Novvlen,  19  Wend.  234 

God."    Dibble  v.  Morgan,  1  Woofls,  Blytlie  v.  Railroad  Co.,  15  Col.  333 

437 


§§  473,  474.]  CAERIEKS.  [PAET    V. 

§  473.  Burden  of  proof. —  If  the  carrier  relies  for  his  defense 
upon  this  excuse,  the  burden  of  proof  is  upon  him  to  make  out 
his  defense,  having  the  affirmative  of  that  issue.^ 

Section  ll. 

By  the  Public  Enemy. 

§  474.  The  public  enemy.— The  public  enemy,  or,  as  it  is 
>called  in  the  English  cases,  the  king's  enemies,  may  be  defined 
to  be  enemies  with  whom  the  nation  is  at  war.  Including  also 
robbers  or  pirates  upon  the  high  seas.  From  this  definition 
it  will  be  understood  that  it  does  not  include  insurgents  or  those 
in  rebellion  with  the  state  or  nation,  nor  strikers,  robbers  or 
marauding  bands  of  thieves,  but  rather  presupposes  that  they 
must  be  the  soldiers  or  armies  of  one  or  more  of  the  govern- 
ments among  the  powers,  as  a  nation  or  independent  govern- 
ment. Revolution,  however,  may  grow  to  such  proportions  that 
it  dominates  the  government  and  country  where  it  exists,  that 
is,  becomes  the  ruling  power,  as  did  the  revolutionists  of  the 
American  colonies,  and,  as  such,  force  recognition  by  other 
nations.  The  revolution  of  the  states  which  brought  on  the 
war  of  the  rebellion  forced  the  courts  of  our  own  country  to 
recognize  their  captures  and  destruction  of  property  as  coming 
within  the  exception,  although  such  recognition  was  conceded 
with  great  reluctance.  In  the  case  of  Mauran  v.  -Insiirance  Co.^ 
the  question  was  very  ably  discussed  by  learned  counsel  in  their 
briefs  printed  w^ith  the  case,  where  authorities  are  cited,  and 
by  Justice  Nelson,  w^ho  rendered  the  opinion  of  the  court.  In 
the  opinion  is  found  this  language:  "Xow,  appljnng  these 
principles  to  the  case  before  us,  it  will  be  seen  that  the  question 
is  not  whether  this  so-called  Confederate  government,  under 
whose  authority  the  capture  was  made,  was  a  lawful  govern- 
ment, but  whether  or  not  it  was  a  government  in  fact,  that  is, 
one  in  the  possession  of  the  supreme  power  of  the  district  of 
country  over  which  its  jurisdiction  extended?  We  agree  that 
all  the  proceedings  of  these  eleven  states,  either  severally  or  in 
conjunction,  by  means  of  which  the  existing  governments  were 

Hale  V.  N.  J.  S.  N.  Co.,  15  Conn.  539;     Heisk.  271;  Nashville,  etc.  R.  Co.  v. 
The  Northern  Belle,  9  Wall.  526;  Plais-    King,  6  Heisk.  269. 
ted  V.   Navigation   Co.,  27  Me.  123;        i  Story  on  Bailm.,  sec.  492. 
Nashville,  etc.  R.  Co.  v.  Jackson,  6        -Q  Wall  1. 

438 


CH.  VI.]  LIMITATIONS   tJPON    LIABILITY.  [§  474. 

overthrown  and  new  governments  erected  in  their  stead,  were 
wholly  illegal  and  void,  and  that  they  remained  after  the  at- 
tempted separation  and  change  of  government,  in  judgment  of 
law,  as  completely  under  all  their  constitutional  obligations  as 
before.  The  constitution  of  the  United  States,  which  is  the 
fundamental  law  of  each  and  all  of  them,  not  only  afforded  no 
countenance  or  authority  for  these  proceedings,  but  they  were, 
in  every  part  of  them,  in  express  disregard  and  violation  of  it. 
Still,  it  cannot  be  denied  but  that  by  the  use  of  these  unlawful 
and  unconstitutional  means  a  gov'ernraent,  in  fact,  was  erected 
greater  in  territory  than  many  of  the  old  governments  in 
Europe,  complete  in  the  organization  of  all  its  parts,  containing 
within  its  limits  more  than  eleven  millions  of  people,  and  of 
sufficient  resources,  in  men  and  money,  to  carry  on  a  civil  war 
of  unexampled  dimensions;  and  during  all  which  time  the  ex- 
ercise of  many  belligerent  rights  were  either  conceded  to  it,  or 
were  acquiesced  in  by  the  supreme  government,  such  as  the 
treatment  of  captives,  both  on  land  and  sea,  as  prisoners  of  war; 
the  exchange  of  prisoners;  their  vessels  captured  recognized 
as  prizes  of  war,  and  dealt  with  accordingly;  their  property 
seized  on  land  referred  to  the  judicial  tribunals  for  adjudica- 
tion; their  ports  blockaded,  and  the  blockade  maintained  by  a 
suitable  force,  and  duly  notified  to  neutral  powers  the  same  as 
in  open  and  public  war. 

"We  do  not  inquire  whether  these  were  rights  conceded  to 
the  enemy  by  the  laws  of  war  among  civilized  nations,  or  were 
dictated  by  humanity  to  mitigate  the  vindictive  passions  grow- 
ing out  of  a  civil  conflict.  We  refer  to  the  conduct  of  the  war 
as  a  matter  of  fact  for  the  purpose  of  showing  that  the  so-called 
Confederate  States  were  in  the  possession  of  many  of  the  highest 
attributes  of  government,  sufficiently  so  to  be  regarded  as  the 
ruling  or  supreme  power  of  the  country,  and  hence  captures 
under  its  commission  were  among  those  excepted  out  of  the 
policy  by  the  warranty  of  the  insured."^  Robbers  or  pirates 
upon  the  high  seas  are  adjudged  to  be  the  public  enemy  upon 

iThe  Prize    Cases,   2   Black,   635;  or  domestic.     Insurrection,  however 

Thorington V.Smith, 8 Wall.  1;  Bland  violent  or   however    formidable,   is 

V.  Adams  Exp.  Co.,  1  Duv.  (Ky.)  2.32.  not  war.     Civil  war  is  preceded  by 

Chief  Justice  Robertson,  in  the  opin-  insurrection,  which  becomes  magni- 

ion,   uses    this    language:    "War    is  fied   and  matured  into  war  in   the 

either  international  or  civil,  foreign  legitimate  sense,  and  when  so  char- 

439 


§§  475,  476.]  CAEEiEES.  [part  v. 

the  theory  that  they  are  the  enemies  of  all  mankind,  and  so 
the  enemies  of  every  nation. 
§  475.  The  diligence  required  on  the  part  of  tlie  carrier. 

In  this,  as  in  the  case  where  the  act  of  God  is  claimed  as  an 
exemption  from  liability,  the  common  carrier  is  held  to  at 
least  ordinary  diligence  in  avoiding  the  loss  of  or  injury  to  the 
property;  and  where,  by  negligence  upon  his  part,  there  is  a 
delay  which  would  result  in  the  destruction  or  injury  of  the 
property,  even  though  it  were  by  the  public  enemy,  or  where 
by  his  negligence  there  was  a  deviation  in  the  route  which 
would  carry  the  property  unnecessarily  into  a  country  invested 
by  the  armies  of  the  enemy,  and  the  property  was  destroyed 
or  injured  by  them;  in  all  such  cases  the  common  carrier 
"would  be  liable,  and  could  not  successfully  invoke  the  defense 
that  the  injur}^  or  destruction  was  the  result  of  the  acts  of  the 
public  enemy.  And  the  same  rule  would  apply  in  cases  where 
the  property  was  injured  or  destroyed  by  pirates  upon  the 
high  seas.  It  is,  in  other  words,  the  duty  of  the  public  carrier 
to  exercise  at  least  ordinary  diligence ;  such  diligence  as  an 
ordinarily  prudent  man,  under  just  such  circumstances,  would 
use  with  reference  to  his  own  affairs. 

§  476.  Diligence,  even  though  the  proi)erty  is  injured  or 
destroyed  after  the  event  has  occurred. —  And  in  this  as  in 
the  cases  already  discussed  under  the  act  of  God,  it  is  the  duty 
of  the  carrier  to  exercise  ordinary  diligence  in  caring  for  the 
property  that  is  injured,  though  the  injury  occurred  by  reason 
of  acts  of  the  public  enem}'^.  He  must  do  all  that  he  can  to 
take  care  of  the  property  that  is  saved  from  destruction,  and 
even  though  it  is  injured,  he  must  care  for  all  that  would 
be  of  value  to  the  shipper  or  his  consignee;  if  by  the  use  of 
such  ordinary  diligence  valuable  property  could  be  saved  or  re- 
stored after  the  injury  or  destruction  has  occurred,  it  is  the 
duty  of  the  carrier  to  exercise  that  diligence,  and  it  would  be 
no  defense  for  the  carrier  to  show  that,  even  though  in  the  par- 
ticular case  he  failed  to  exercise  diligence,  the  property  would 
have  been  destroyed  on  account  of  other  like  calamities  that 
certainly  would  have  overtaken  it.     As,  for  example,  if  the 

acterized  the  parties  are  belligerents  Exp.  Co.  v.  Womack,  1  Heisk.  256; 
and  entitled  to  belligerent  rights."  Fiefield  v.  Insurance  Co..  47  Pa.  St. 
Frank  v.  Keith,  2  Bush,  123 ;  Southern     166. 

4-iO 


CH.  TI.]  LIMITATIONS    UPON    LIABILITY.  [§  477. 

property,  on  account  of  unnecessary  deviation  from  the  usual 
route,  was  injured  or  destroyed  even  by  the  act  of  God  or  the 
public  enemy,  it  would  be  no  defense  for  the  carrier  to  show 
that  if  the  route  had  not  been  deviated,  and  the  property  had 
been  carried  upon  the  usual  course,  it  would  probably  have  suf- 
fered the  same  injury  or  destruction.  The  law,  in  other  words, 
will  not  speculate  and  accept  the  theories  and  conclusions  of 
men;  in  such  a  case  the  actual  injury  or  destruction  is  the  ques- 
tion that  is  to  be  adjudicated  upon  and  adjusted,  and  where  it 
has  taken  place  under  such  circumstances  the  carrier  must  an- 
swer to  the  extraordinary  liability  that  is  required  in  his  case.^ 
Should  it  be  a  case,  however,  where  there  could  be  no  question 
but  that  the  property  would  have  been  destroyed  had  the  car- 
rier pursued  the  usual  and  regular  course,  and  the  deviation 
was  dictated  by  ordinary  judgment  and  prudence,  but  resulted 
in  disaster  by  reason  of  the  act  of  God  or  other  reason  which 
would  ordinarily  excuse  the  carrier,  in  such  case  it  seems  the 
carrier  would  be  excused.- 

§  477.  Strikers,  rioters  and  robbers  not  tlie  public  enemy. 
Strikers,  rioters  and  robbers  are  not  deemed  to  be  the  public 
enemy,  and  so  their  action  will  not  relieve  the  carrier  from 
the  extraordinary  liability  which  attaches  to  a  common  car- 
rier of  goods,  except  so  far  as  to  excuse  deviation  and  delay. 
This  seemingly  severe  rule  as  to  the  liability  of  the  carrier 
seems  to  have  had  its  origin  in  the  very  early  opinion  that  the 
carrier  should  be  held  to  meet  such  force  with  force;  if  at- 
tacked by  robbers,  that  he  should  have  at  his  call  sufficient 
force  to  meet  and  repel  the  attack.^  More  recently  this  rule, 
which  seems  to  have  generally  prevailed  in  the  earlier  times, 
has  been  abandoned  by  the  courts  and  the  liability  rested  upon 
a  different  -theory,  namely,  that  of  a  probability  of  collusion 
between  the  carrier  and  third  parties  to  defraud  the  shipper, 
unless  deterred  b}''  severe  rules  and  penalties,  which  seemed  to 
be  demanded  by  public  policy. 

J  This  was  the  discussion  in   the  that  which  a  person  of  ordinary  pru- 

case  of  Davis  v.  Garrett,  6  Bing.  716.  dence  and  caution  would  use  if  his 

2  Story  on  Bailm.,  sees.  413a,  iVSb,  own  interests  were  to   be  affected 
413c,  413cZ.  The  Nitroglycerine  Case,  and  the  whole  risk  were  his  own. 
15   Wall.    534,  held  the  measure  of        *Coggs  v.  Bernard,  2  Lord  Ray- 
care    against    accident    which    one  mond,  909. 
must  take  to  avoid  responsibility  is 

441 


§  478.]  CARRIERS.  [part   V. 

Lord  Mansfield  in  commenting  upon  this  subject  said:  "If 
an  armed  force  came  to  rob  the  carrier  of  the  goods,  he  is 
liable;  and  a  reason  is  given  in  the  books  which  is  a  bad  one, 
namely,  that  he  ought  to  have  sufficient  force  to  repel  it.  But 
that  would  be  impossible  in  some  cases;  as,  for  instance,  in  the 
riots  of  1780  (the  Lord  George  Gordon  riots).  The  true  rea- 
son is  for  fear  it  may  give  room  for  collusion;  that  the  carrier 
may  contrive  to  be  robbed  on  purpose  and  share  the  spoils." 
And  so  it  would  seem  that  this  rests  upon  the  theory  that 
seems  to  have  originated  the  extraordinar}'"  liability  itself, 
namely,  to  meet  the  possibility  of  the  collusion  of  the  carrier 
with  robbers,  rioters,  strikers  or  thieves. 

Section  III. 

"Where  the  Loss  or  Injury  is  the  Result  of   the  Acts    of 

THE  Shipper. 
§  478.  Reasons  of  the  liability  of  the  carrier. —  The  limita- 
tion stated  in  the  third  general  heading  is  one  of  the  more 
recently  added  exceptions  to  the  rule  governing  the  liability 
of  the  carrier.  The  early  rule  of  the  common  law  excused  the 
carrier  from  liability  only  in  cases  where  the  loss  or  injury  was 
the  result  of  an  act  of  God  or  the  public  enemy;  in  all  other 
cases  he  was  an  insurer.  But  to  say  that  the  carrier  should 
not  be  excused  when  the  injury  or  destruction  of  the  property 
was  the  direct  result  of  the  shipper's  own  acts,  or  because  of 
his  own  fraud,  would  be  a  travesty  upon  justice  which  the 
good  judgment  of  men  and  that  sense  of  justice  which  all  pos- 
sess would  condemn,  and  condemnin":  would  demand  a  change 
so  as  to  better  comport  with  justice  and  right.  So,  growing 
out  of  the  experience  and  well-balanced  judgment  of  men,  there 
has  been  added  to  this  rule  the  just  exception  now  under  dis- 
cussion: so  when  the  loss  or  injury  is  the  result  of  the  acts  of 
the  shipper,  the  carrier  shall  be  excused  from  the  extraordinary 
liability.  Among  the  well-defined  reasons  for  placing  the  car- 
rier under  the  extraordinary  liability  amounting  to  an  insurer  of 
the  property,  is  that  he  has  the  entire  possession,  custody  and 
control  of  the  property  throughout  the  entire  time  of  ship- 
ment; therefore,  because  he  must  bear  this  extraordinary  lia- 
bility, he  has  the  right  to  insist  that  his  custody  and  control 
shall  be  absolute  and  without  interference ;  even  by  the  owner  or 

413 


CH.  VI.]  LIMITATIONS    UPON    LIABILITY.  [§  479. 

the  shipper.  Then,  too,  as  we  shall  see,  the  shipper  b}'^  his  ac- 
tions before  placing  the  goods  into  the  custody  of  the  carrier 
might  by  some  act  of  his  own  have  impeded  the  facilities  of 
the  carrier,  or  in  fact  been  the  cause  of  his  inability  to  trans- 
port the  property  with  that  safety  that  is  required,  and  for  such 
acts  upon  the  part  of  the  shipper  common  justice  and  right 
would  demand  that  the  shipper  and  not  the  carrier  should 
be  liable. 

§  479.  Contributory  negligence. —  As  we  have  already  seen^ 
a  very  high  degree  of  diligence  in  caring  for  and  transporting 
the  property  is  demanded  of  the  carrier;  even  to  the  extent 
that  in  case  of  loss  of  the  property  his  liability  is  held  to  be 
that  of  an  insurer.  Where,  however,  there  are  duties  to  be 
performed  upon  the  part  of  the  shipper  and  the  loss  of  the 
property  is  occasioned  by  his  failure  to  perform  these  duties^ 
or  where  any  omission  or  negligent  act  of  the  shipper  is  a 
partial  cause  of  the  loss  or  injury,  in  connection  with  the 
duties  to  be  performed  by  the  carrier,  it  may  be  said  that  he 
has  contributed  to  the  loss  or  injury,  and  in  such  case,  being 
himself  guilty  of  contributory  negligence,  he  would  not  be  per- 
mitted to  recover  from  the  common  carrier. 

Where  the  owner  of  cotton  placed  it  upon  a  platform  for 
shipment,  not  leaving  any  watch,  the  cotton  being  destroyed 
by  fire  negligently  set  by  the  railroad  company,  it  was  held 
in  an  action  against  the  railroad  company  for  the  cotton  de- 
stroyed that  it  was  not  contributory  negligence  ])er  se  for  the 
shipper  to  place  the  cotton  on  the  platform.'  This  rule  is  un- 
doubtedly based  upon  the  theory  that  good  faith  and  reason- 
able diligence  from  the  owner  in  his  dealings  with  the  carrier 
are  required.  And  so,  where  the  owner  of  property  accompa- 
nied it  for  the  purpose  of  taking  care  of  it,  and  the  property 
was  lost  and  destroyed  through  negligence  of  the  owner  in 
failing  properly  to  care  for  it,  it  was  held  that  ho  was  not  en- 
titled to  recover  in  an  action  against  the  carrier.  The  court^ 
in  delivering  the  opinion,  said:  "It  is  the  right  of  the  owner 
to  commit  his  property  to  the  exclusive  custody  of  the  carrier^ 
and  the  latter  has  no  right  to  decline  to  receive  it;  but  if  the 
owner  sees  fit  to  take  upon  himself  any  duty  connected  with 
the  carriage,  he  does  not  lose  his  position  as  an  independent 

1  St.  Louis,  A.  &  T.  Ry.  Co.  v.  Fire  Ass'n  of  Phila.,  55  Ark.  163. 

443 


§§  480,  481.]  CAEEiEKS.  [part  v. 

party  to  the  contract,  and  is  bound  to  discharge  it  with  fidel- 
ity."i 

§  480.  Improperly  inarking  goods  by  the  consignor. —  It 

is  the  duty  of  the  shipper  of  goods  to  see  that  they  are  prop- 
€rlv  marked  to  their  destination  in  order  that  the  consiornee  of 
the  property  and  the  place  where  the  shipment  is  to  be  made 
may  be  properly  entered  upon  the  books  of  the  carrier.  It  has 
been  held  to  be  the  duty  of  the  owner  of  goods  to  have  them 
properly  marked  and  present  them  to  the  carrier  or  his  servants 
that  they  may  be  entered  in  the  books  of  the  carrier,  and  if  he 
neglects  to  do  this,  and  there  is  a  misdelivery  and  loss  in  con- 
sequence without  any  fault  on  the  part  of  the  carrier,  the  car- 
rier will  not  be  held  liable  for  the  loss.^  But  where  the  croods 
were  incorrectly  addressed,  but  the  carrier's  agent  at  the  time 
he  received  them  had  knowledge  of  the  error,  it  was  held  that 
the  liability  of  the  carrier  could  not  be  defeated  upon  the 
ground  of  contributory  negligence  of  the  owner,  but  the  car- 
rier, having  knowledge  of  the  error,  should  have  acted  upon 
that  knowledge.* 

§  481.  Goods  improperly  paclied  or  loaded. —  The  duty  of 
packing  the  goods  for  shipment,  as,  for  example,  in  the  case  of 
crockery  or  glassware,  or  other  property  which  requires  proper 
packing,  usually  devolves  upon  the  shipper.  As  we  have  already 
seen,  the  carrier  comj^any  may  demand  that  the  goods  shall  be 
properly  packed  and  ready  for  shipment  before  it  is  compelled 
to  receive  them  for  transportation.  It  would  therefore  fol- 
low that  where  the  goods  were  improperly  packed,  and  for 
this  reason  injury  or  loss  resulted,  the  carrier  could  not  be 
held  liable.  So,  it  is  often  the  duty  of  the  shipper  to  load 
the  goods  into  the  vehicles  of  the  carrier,  and  thus  ))ut  them 

1  Wilson  V.  Hamilton,  4  Ohio  St.  not  liable.     So.  Ex.  Co.  v.  Kaufman, 

722.  59  Tenn.  (12  Heisk.)  161.    And  where 

-  The  Huntress,  12  Fed.  Cas.  No.  fruit  trees  were  missent  by  the  car- 

6,914.  lier.  the  plaintiff  having  marked  tlie 

3  O'Rourke  v.  C,  B.  &  Q.  R.  Co.,  44  goods  luka,  Iowa,  witliout  designat- 

lowa,  526;  Forsythe  v.  Walker.  9  Pa.  ing  Tama  county,  there  being  two 

St.    148.     An   express   package   was  townsnamed  luka  in  Keokuk  county, 

misdirected  by  the  consignors,  in  con-  it  was   held   that   the   shipper   was 

sequence  of  which  it  was  delivered  guilty  of  contributory  negligence  in 

at  a  wrong  place,  and  witliout  de-  marking  the  goods.     Conger  v.  Chi- 

fault  of  the  company  was  destroyed  cago  &  N.  W.  R  Co.,  24  Wis.  157. 
by  fire.    Held,  that  the  company  was 

444 


I 


CH.  VI.]  LIMITATIONS    UPON    LIABILITY.  [§  482, 

in  readiness  for  shipment.  And  where  the  shipper  loaded 
upon  a  platform  car  heavy  machinery,  and  insufficiently 
packed  the  wheels,  by  reason  of  which  the  machinery,  while 
being  transported  by  the  defendant  carrier,  broke  from  its 
fastenings  without  any  fault  of  the  defendant  in  the  running 
of  the  train,  or  in  maintenance  of  the  track,  and  was  injured, 
it  was  held  that  the  carrier  was  not  liable  therefor,  although 
one  of  its  servants,  the  yardmaster  and  forwarder  of  freight 
cars,  saw  the  fastenings  and  noticed  that  they  were  insufficient. 
The  court  say  in  the  opinion :  "  Had  the  fastenings  been 
sufficient  the  accident  Avould  not  have  happened.  Is  the  de- 
fendant chargeable  with  the  consequences  of  that  insufficiency  ? 
We  think  not,  in  the  sense  in  which  the  county  court  seems 
to  have  regarded  it.  The  undertaking  and  duty  of  the  defend- 
ant was  to  transport  and  deliver  safely  against  all  contingen- 
cies except  the  act  of  God,  public  enemies,  and  the  acts  of  the 
parties  shipping  the  property.  It  was  the  insurer  against 
everything  but  those;  but  as  against  them,  it  was  bound  only 
to  the  exercise  of  reasonable  care  and  diligence.  In  this  case 
it  undertook  to  transport  the  goods  safely,  in  the  condition  in 
which  the  plaintiff  had  packed  them,  insuring  against  every- 
thing but  that  condition  and  its  consequences,  and  bound  to 
use  reasonable  care  and  diligence  against  injury  resulting  from 
that  condition."^  And  so  reason  and  justice  dictate  that  if 
boxes  in  which  goods  are  packed  by  the  shipper  for  transpor- 
tation should  be  broken  upon  the  journey,  and  loss  is  thereby 
occasioned,  and  without  any  fault  on  the  part  of  the  carrier  the 
goods  are  destroyed,  the  carrier  could  not  be  held  liable.^ 

§  482.  ?feglect  of  the  shipper  to  disclose  contents  or  value. 
The  neglect  of  the  shipper  to  disclose  to  the  common  carrier 
the  value  of  the  package  delivered  for  shipment  may  in  some 
cases  be  considered  as  fraudulent  upon  the  part  of  the  shipper, 
and  at  least  as  not  comporting  with  that  reasonable  rule  which 
the  law  imposes  upon  the  bailor  that  he  shall  deal  fairly  with 

1  Ross  V.  Troy  &  B.  R.  Co.,  49  Vt.  the  weight  of  the  hogshead  and  the 

364.  contents   thereof    were   lost.     Held, 

2 "The  owner  of  a  hogshead  of  mo-  that  the  owner  could  not  maintain 

lasses  furnished  a   common   carrier  an  af;tion  against  the  carrier  lor  the 

with  skids  wherewith  to  unload  the  loss."    Loveland  v.  Burke,  120  Mass. 

same  from  his  wagon;  but  the  skids,  139,  21  Am.  Rep.  G07. 
owing  to  a  latent  defect,  broke  under 

445 


§  482.]  CAEEIEK8.  [part   V. 

the  bailee.  Cases  have  often  been  presented  to  the  courts 
where  valuable  articles,  and  often  money,  has  been  stowed 
away  in  packages  that  were  delivered  for  transportation,  with- 
out apprising  the  carrier  of  the  value  of  the  package;  the 
carrier,  thus  being  misled,  failing  to  exercise  the  high  degree  of 
diligence  that  he  would  have  exercised  had  he  known  the  con- 
tents of  the  package.  In  all  such  cases,  if  it  can  be  shown 
that  the  owner  of  the  property  fraudulently  secreted  the  valu- 
able articles  and  intentionally  kept  the  fact  from  the  carrier, 
the  courts  have  excused  the  carrier  from  the  extraordinary 
liability.  And,  indeed,  the  authorities  have  gone  so  far  as  to 
hold  that  the  intention  to  impose  upon  the  carrier  is  not  ma- 
terial; that  it  is  enough  if  the  conduct  of  the  shipper  resulted 
in  an  imposition  upon  the  carrier.  "  Where  a  party  forwarded 
jewelry  worth  a  large  amount  of  money  in  a  box  by  express, 
taking  a  receipt  which  disclosed  on  its  face  that  the  com- 
pany should  not  be  held  liable  for  any  loss  or  damage  of  any 
box,  package  or  thing  over  $50,  unless  the  just  and  true  value 
thereof  was  therein  stated,  and  failed  to  state  the  value,  and  in 
consequence  thereof  was  charged  a  less  premium  than  other- 
wise would  have  been  required,"  it  was  held  "that  it  showed 
that  there  was  a  designed  suppression  of  the  value  of  the  goods, 
and  that  it  was  unfair  conduct  on  the  part  of  the  shipper  of 
the  goods,  and  that  the  effect  of  such  conduct  was  to  relieve 
the  carrier  from  his  liability  as  insurer;  that  had  the  true  value 
of  the  goods  been  disclosed,  there  would  have  been  an  extra 
charge,  and  increased  precaution  would  have  been  taken  for 
the  safety  of  the  goods,  and  that  the  goods  on  account  of  this 
would  have  been  saved;  that  the  consignor  by  his  conduct 
elected  to  take  the  risk  of  the  loss  rather  than  to  subject  plaint- 
iff to  the  enhanced  charges  that  would  have  been  made  had 
the  value  of  the  property  been  disclosed."' 

The  rule  in  this  respect  is  thus  laid  down  by  the  supreme 
court  of  New  York:  "  If  the  carrier  has  given  general  notice 
that  he  will  not  be  liable  over  a  certain  amount  unless  the  value  is 
made  known  to  him  at  the  time  of  delivery  and  a  premium  for 
insurance  paid,  such  notice,  being  brought  home  to  the  knowl- 
edge of  the  owner  (and  courts  and  juries  are  liberal  in  infer- 
ring such  knowledge  from  the  publication  of  the  notice),  is  as 

1  Oppenheiraer  &  Co.  v.  U.  S.  Exp.  Co.,  69  111.  63. 
446 


CH.  VI.]  LIMITATIONS    UPON    LIABILITY.  [§  482. 

effectual  in  qualifying  the  acceptance  of  the  goods  as  a  special 
agreement,  and  the  owner,  at  his  peril,  must  disclose  the  value 
and  pay  the  premium.  The  carrier  in  such  case  is  not  bound 
to  make  the  inquiry,  and  if  the  owner  omits  to  make  known 
the  value,  and  does  not  therefore  pay  the  premium  at  the  time 
of  delivery,  it  is  considered  as  dealing  unfairly  with  the  carrier, 
and  he  is  liable  only  to  the  amount  mentioned  in  his  notice,  or 
not  at  all,  according  to  the  terms  of  his  notice."  ^ 

And  where  valuable  goods  were  delivered  to  the  carrier,  an 
express  company,  for  carriage,  the  shipper  remaining  silent  as 
to  their  real  value,  the  carrier  giving  him  a  receipt  stating 
among  other  things  that  if  the  value  of  the  property  described 
is  not  stated  by  the  shipper,  the  holder  will  not  demand  of  the 
company  a  sum  exceeding  $50  for  the  loss  or  detention  or  dam- 
age of  the  property,  it  was  held  that  a  disclosure  of  the  value 
of  the  goods  was  a  condition  precedent  to  the  attaching  of  any 
liability  to  the  carrier,  or  merely  ordinary  neglect  unaccom- 
panied with  any  misfeasance  or  wilful  act;  and  that  if  goods  of 
greater  value  are  so  delivered,  silence  on  the  part  of  the  shipper 
as  to  the  real  value,  although  there  is  no  inquiry  and  no  arti- 
fice to  conceal  the  value  or  to  deceive,  is  a  legal  fraud  which 
discharges  the  carrier  from  liability  or  ordinary  negligence  for 
an  amount  exceeding  the  limitation  made  by  the  carrier.^ 

"And  where  a  shipper  delivered  to  a  carrier  for  transportation 
a  bundle  having  the  appearance  of  bedding  only,  but  which  in 
fact  contained  inside  of  the  bedding  valuable  clothing,  such  as  a 
silk  dress,  a  brocha  shawl  and  furs  of  the  value  of  $200  or  more, 
Avhich  fact  was  not  disclosed,  and  thereby  shipped  them  at  a 
low  rate  of  freight,  it  was  held  that  this  was  such  an  imposi- 
tion and  fraud  practiced  upon  the  carrier  as  to  release  him 
from  any  liability  for  loss,  except  as  to  what  might  properly 
be  termed  bedding."^  And  where  a  package  containing  articles 
of  a  brittle  nature  is  delivered  to  an  express  company  to  be 
transported  from  one  point  to  another,  and  the  company  is 
not  informed  what  the  package  contained,  so  that  a  degree  of 

'Orange  Co.   Bank    v.   Brown,    9  2]viagnin  v.  Dinsmore,  70  N,  Y,  410; 

Wend.  115;  Angell  on  Carriers,  sec.  Hayes  v.  Wells,  Fargo  &  Co.,  23Cal. 

245;    Farmers'  Bank   v.    Cliamplain  185,' 

Trans.  Co..  23  Vt.  186;  Western  Trans.  3  Chicago,  etc,  R  Co.  v.  Shea,  66 

Co.  V,  Newhall,  24  111.  466;  HoUister  111.  471. 
V,  Nowlen,  19  Wend.  244. 

447 


§§  483-485.]  CARRIERS.  [part  v. 

care  may  be  used  proportionate  to  its  fragile  character,  the  com- 
pany will  not  be  held  liable  to  the  extent  of  common  carriers, 

§  483.  Loss  from  mistake  or  iutermedtlliiig  on  the  part 
of  the  shipper. —  As  has  often  been  said,  the  liability  of  the 
carrier  is  based  largely  upon  the  fact  of  his  possession  and  en- 
tire control  of  the  goods  shipped;  and  so,  if  the  shipper  inter- 
meddles or  is  guilty  of  any  unwarranted  interference  which 
occasions  loss  of  or  injury  to  the  property,  he  must  suffer  for  his 
own  acts,  and  not  the  carrier.  And  so  where  an  owner  of  a 
horse  shipped  the  horse  by  placing  him  in  a  car  and  insisted 
that  the  door  should  be  left  open,  and  would  not  allow  the 
servants  of  the  carrier  to  shut  the  door  of  the  car,  saying  that 
he  would  take  care  of  the  horse  himself,  and  the  horse,  falling- 
out  through  the  door  of  the  car,  was  injured,  it  was  held  that 
the  common  carrier  was  not  liable  for  the  injury  to  the  horse; 
it  was  occasioned  by  the  improper  and  unwarrantable  inter- 
ference of  the  plaintiff.^  And  in  a  case  where  a  horse  was  in- 
jured by  jumping  through  an  open  window  in  the  car  which 
was  left  open  by  the  owner,  it  was  held  negligence  upon  the 
part  of  the  owner,  and  recovery  against  the  common  carrier 
was  not  allowed. - 

§  484.  Xegligeiice  of  the  carrier. —  While  for  these  reasons 
the  common  carrier  is  excused  from  the  extraordinary  liabil- 
ity, the  rule  obtains  that  was  discussed  under  the  other  lim- 
itations, namely:  where  the  injury  or  loss  was  occasioned  by 
reason  of  the  act  of  God  or  the  public  enemy,  the  carrier  must 
at  all  times  exercise  at  least  ordinar}^  diligence  in  caring  for 
and  transporting  the  injured  property,  if  any,  safely  for  the 
consignee  to  the  destination  of  the  shipment. 

Section  IY. 

Where    the    Loss    or    Injury    is    Caused    by  the  Inherent 
Nature  of  the  Goods. 

§  485.  The  exception. —  This  subject  has  been  so  often  re- 
ferred to  in  previous  sections  of  this  volume  that  it  hardly 
seems  necessary  to  discuss  it  here.     It  can  be  very  readily  seen 

1  Roderick  v.  Railroad  Co.,  7  W.'Va.  R  Co.,  37  Minn.  524;  Congar  v.  Rail- 
54.  road  Co.,  24  Wis.  157. 

2  Hutchinson  v.  C,  St.  P.,  M.  &  O. 

448 


en.    VI.]  LIMITATIONS    UPON    LIABILITY.  [§§   486,  487. 

that  if  the  loss  of  the  property  is  the  result  of  the  inherent  nat- 
ure of  the  goods  or  of  the  property  being  shipped,  and  is  not 
the  result  of  any  fault  of  the  carrier,  it  would  be  at  least  un- 
just to  hold  the  carrier  to  an  extraordinary  liability,  namely, 
as  an  insurer  for  the  delivery  of  such  property.  As,  for  ex- 
ample, Avhere  the  goods  are  perishable,^  and  because  of  unfore- 
seen delay  that  could  not  be  prevented  by  the  carrier  the  goods 
have  spoiled  or  become  damaged,  it  would  be  unjust  to  hold 
the  carrier  in  such  case.  Also  in  the  case  of  liquids  that  evap- 
orate. The  loss  or  damage  falling  within  this  exception,  when 
the  freight  is  inanimate,  is  such  that  no  diligence  however  great 
on  the  part  of  the  carrier  could  divert,  but  is  entirely  attributa- 
ble to  the  nature  of  the  goods. 

§  486.  Animate  freight. —  In  connection  with  this  excep- 
tion belongs  the  discussion  of  its  application  to  the  carriage  of 
animate  freight.  If  the  freight  has  life  and  activity  it  must  of 
necessity  introduce  a  new  element  into  the  question  of  the  lia- 
bility of  the  carrier.  The  fact  that  he  is  able  by  himself  or  his 
servants  to  absolutely  control  the  freight,  as  he  can  if  it  is  in- 
animate, materially  adds  to  the  reasonableness  of  the  common- 
law  rule  that  held  the  common  carrier  to  the  extraordinary 
liability  as  an  insurer.  There  is  no  danger  from  the  action  of 
the  freight  itself.  If  it  is  inanimate  it  remains  where  it  was 
packed  or  loaded  or  stored;  it  is  only  a  matter  of  handling 
and  transporting  and  delivering  it.  But  where  the  freight  is 
animate  the  carrier  meets  a  very  different  condition.  The 
freight  is  active,  and  added  to  the  care  of  the  property  merely 
as  freight,  is  the  care  that  is  required  because  of  its  life  and 
activity. 

Section  Y. 

Carrying  of  Live  Stock. 

§487.  The  exception  applies. —  Good  conscience  and  fair 
dealing  demand  that  the  rigorous  rule  of  the  common-law 
liability  be  modified  in  respect  to  the  carrying  of  live  stock; 

1  American  Ex.  Co.  v.  Smith,  '63  them  further:  the  carrier  sold  them 
Ohio  St.  511.  Peaches  were  shipped  for  the  best  price  obtainable.  It  was 
by  the  carrier.  On  account  of  a  held  tliat  he  was  not  liable,  and  dis- 
bridge  being  washed  away  by  a  charged  his  duty  in  selling  the  prop- 
freshet  it  was  impossible  to  carry  erty. 
29  449 


§  487.]  CARRIERS.  [part    Y. 

and  so  it  has  been  held  without  dissent  that  where  animals 
are  injured  or  lost  while  in  transit,  and  the  damage  or  loss  is 
not  in  any  way  attributable  to  the  fault  of  the  carrier,  but  is 
the  result  of  the  inherent  nature,  vice,  condition  or  disease  of 
the  animals,  the  carrier  should  be  excused  from  the  extraor- 
dinary liability,  and  held  answerable  only  for  ordinary  dili- 
gence which  he  must  exercise  in  protecting  the  shipper  so  far 
as  possible  from  loss. 

The  rule  has  been  stated  in  a  very  recent  case  as  follows: 
"While  a  common  carrier  of  goods,  who  transports  live  stock, 
is,  as  to  the  latter  property,  a  common  carrier,  he  is  exempt 
from  liability  for  loss  or  injury  caused  by  the  nature  and 
propensities  of  the  animals,  and  which  cannot  be  prevented  by 
foresight,  vig-ilancse  and  care."  ^ 

It  has  also  been  held  in  a  well-considered  case:  "In  the 
transportation  of  such  stock,  in  the  absence  of  negligence,  the 
carrier  is  relieved  from  responsibility  for  such  injuries  as  occur 
in  consequence  of  the  vitality  of  the  freight.  He  does  not  ab- 
solutely warrant  live  freight  against  the  consequences  of  its 
own  vitality.  Animals  may  injure  or  destroy  themselves  or 
each  other;  they  may  die  from  fright  or  from  starvation  be- 
cause tbey  refuse  to  eat,  or  they  may  die  from  heat  or  cold.  In 
all  such  cases  the  carrier  is  relieved  from  responsibility  if  he 
can  show  that  he  has  provided  all  suitable  means  of  transporta- 
tion and  exercised  that  degree  of  care  which  the  nature  of  the 
property  requires."  - 

Where  plaintiff  shipped  over  the  defendant's  road  a  span 
of  horses  that  had  been  driven  together,  and  had  been  pre- 
viously kind  and  well  disposed,  and  it  was  found  on  arrival  at 
their  destination  that  one  of  them  had  been  very  badh?"  kicked, 
although  they  had  been  tied  in  opposite  corners  of  the  car, 
it  was  said  by  the  Massachusetts  court  in  its  opinion :  "Ac- 
cording to  the  established  rule  as  to  the  liability  of  a  common 
carrier,  he  is  understood  to  guarantee  that  (with  the  well- 
known  exception  of  the  act  of  God  and  of  public  enemies)  the 
goods  intrusted  to  him  shall  seasonably  reach  their  destina- 

1  Cooper  V.  Raleigh,  etc  R.  Co.,  110  Co.,  14  N.  Y.  570;  Bissell  v,  N.  Y. 
Ga.  659.  Cent.  R.  Co.,  25  N.  Y.  442;  Smith  v. 

2  Cragin  et  aL  v.  N.  Y.  Cent.  R.  Co.,  M.  H.  &  N.  R.  Co.,  12  Alien,  531, 
51  N.  Y.   61,  63;  Clark   v.    Railroad 

450 


CH.  YI.]  LIMITATIONS    UPON    LIABILITY.  [§  487. 

tion,  and  that  they  shall  receive  no  injury  from  the  manner  in 
which  their  transportation  is  accomplished.  But  he  is  not, 
necessaril}^  and  under  all  circumstances,  responsible  for  the 
condition  in  which  they  may  be  found  upon  their  arrival.  The 
ordinary  and  natural  decay  of  fruit,  vegetables  and  other  per- 
ishable articles,  the  fermentation,  evaporation  or  unavoidable 
leakage  of  liquids,  the  spontaneous  combustion  of  some  kinds 
of  goods,  are  matters  to  which  the  implied  obligation  of  the 
carrier,  as  an  insurer,  does  not  extend.  lie  is  liable  for  all 
accidents  and  mismanagement  incident  to  the  transportation 
and  to  the  means  and  appliances  by  which  it  is  effected;  but 
not  for  injuries  produced  by,  or  resulting  from,  the  inherent 
defects  or  essential  qualities  of  the  articles  which  he  under- 
takes to  transport.  The  extent  of  his  duty  in  this  respect  is 
to  take  all  reasonable  care  and  use  all  proper  precautions  to 
prevent  such  injuries,  or  to  diminish  their  effect  as  far  as  he 
can ;  but  his  liability,  in  such  cases,  is  by  no  means  that  of  an 
insurer.  ,  .  .  They  would  be  unconditionally  liable  for  all 
injuries  occasioned  by  the  improper  construction  or  unsafe  con- 
dition of  the  carriage  in  which  the  horses  were  conveyed,  or 
by  its  improper  position  in  the  train,  or  by  the  want  of  rea- 
sonable equipment,  or  by  any  mismanagement,  or  want  of  due 
care,  or  by  any  other  accident  (not  within  the  well-known  ex- 
ception) affecting  either  the  train  generally  or  that  particular 
carriage.  But  the  transportation  of  horses  and  other  domestic 
animals  is  not  subject  to  precisely  the  same  rules  as  that  of 
packages  and  inanimate  chattels.  Living  animals  have  excita- 
bilities  and  volitions  of  their  own  which  greatly  increase  the 
risks  and  difficulties  of  management.  They  are  carried  in  a 
mode  entirely  opposed  to  their  instincts  and  habits;  they  may 
be  made  uncontrollable  by  fright,  or,  notwithstanding  every 
precaution,  may  destroy  themselves  in  attempting  to  break 
loose,  or  may  kill  each  other."  ^  And  so  it  has  been  held,  "  where 
horses  or  other  animals  were  being  transported  by  water,  and 
in  consequence  of  a  storm  broke  down  the  partitions  between 
them,  and  by  kicking  each  other  some  of  them  were  killed, 
that  the  carrier  woukl  not  be  held  responsible."^ 

1  Evans  v.  P^itchburg  R.  Co.,  Ill  2  Lawrence  v.  Aberdein,  5  B.  & 
Mass.  142,  143;  Story  on  Bailm.,  Aid.  107;  Angell  on  Carriers,  sec. 
sec.  57G.  214a. 

451 


§  4SS.]  CARRIERS.  [part    V. 

The  United  States  supreme  court  have  held  that  "  although 
a  railroad  company  is  not  a  common  carrier  of  live  animals  in 
the  same  sense  that  it  is  a  carrier  of  goods,  its  responsibilities 
being  in  many  respects  dijfferent,  yet,  when  it  undertakes  gener- 
ally to  carry  such  freight,  it  assumes  under  similar  conditions 
the  same  obligations  so  far  as  the  route  is  concerned  over  which 
the  freight  is  to  be  carried."  ^  And,  indeed,  it  may  be  said 
that  there  is  great  unanimity  in  the  decisions  of  the  states  upon 
this  question.  The  Michigan  court,  however,  has  adopted  a 
different  rule. 

§  4:88. Michigan  rule. — The  Michigan  court  has  steadily 

held  that,  as  to  the  carriage  of  live  stock,  railroad  companies  are 
not  common  carriers  and  can  only  be  held  to  the  exercise  of 
ordinary  diligence.  This  doctrine  was  very  ably  discussed  in 
the  case  of  Michigan  Southern  &  N.  Ind.  0.  R.  Co.  v.  McDonough? 
The  court  say:  "The  transportation  of  cattle  and  live  stock  by 
common  carriers  by  land  was  unknown  to  the  common  law 
when  the  duties  and  responsibilities  of  common  carriers  were 
fixed,  making  them  insurers  against  all  losses  and  injuries  not 
arising  from  the  act  of  God  or  of  the  public  enemies.  These 
responsibilities  and  duties  were  fixed  with  reference  to  kinds 
of  property  involving,  in  their  transportation,  much  fewer 
risks,  and  of  quite  a  different  kind,  from  those  which  are  inci- 
dent to  the  transportation  of  live  stock  by  railroad.  Animals 
have  wants  of  their  own  to  be  supplied;  and  this  is  a  mode  of 
conveyance  at  which,  from  their  nature  and  habits,  most  ani- 
mals instinctively  revolt;  and  cattle  especially,  crowded  in  a 
dense  mass,  frightened  by  the  noise  of  the  engine,  the  rattling, 
jolting  and  frequent  concussions  of  the  cars,  in  their  frenzy 
injure  each  other  by  trampling,  plunging,  goring,  or  throwing 
down;  and  frequently,  on  long  routes,  their  strength  exhausted 
by  hunger  and  thirst,  fatigue  and  fright,  the  weak  easily  fall 
and  are  trampled  upon,  and  unless  helped  up  must  soon  die. 
.     .     .     It  is  a  mode  of  transportation  which,  but  for  its  neces- 

1  Myrrick  v.  Mich.  Cent.  R.  Co.,  107  insurers  against  losses  or  injuries  re- 

U.  S.  102,  107.  In  Cash  v.  "Wabash  R.  suiting  from   the   inherent  nature, 

Co.,  81  Mo.   App.    109,  it   was  said:  propensities  and  habits  of  the  animals 

"  The  duties  and  responsibilities  of  a  themselves."    McCoy  v.  K.  &  D.  R 

carrier  of  live  animals  are  those  of  a  Co.,  44  Iowa,  424. 

common  carrier  with  respect  to  other  -  21  Mich.  165. 
projserty,  except  that  they  are  not 

453 


CH.   VI.]  LIMITATIONS    UPON    LIABILITY.  [§  489. 

sity,  would  be  gross  cruelty  and  indictable  as  such.  The  risk 
may  be  greatly  lessened  by  care  and  vigilance,  by  feeding  and 
watering  at  proper  intervals,  by  getting  up  those  that  are 
down,  and  otherwise.  But  this  imposes  a  degree  of  care  and 
an  amount  of  labor  so  different  from  what  is  required  in  refer- 
ence to  other  kinds  of  property,  that  I  do  not  think  this  kind 
of  property  falls  within  the  reasons  upon  which  the  common- 
law  liability  of  common  carriers  was  fixed.^  .  .  ,  Upon 
sound  principle  and  upon  the  English  authorities  above  cited,  I 
think  it  clear  the  transportation  of  cattle  by  railroad  does  not 
come  within  the  reasons  of  the  law  applicable  to  common  car- 
riers, so  far  as  relates  to  the  care  of  the  property  and  respon- 
sibility for  its  loss  or  injury."  ^ 

While  the  Michigan  court  is  not  sustained  by  the  authorities 
generally,  and  seems  to  stand  alone  upon  the  general  question 
of  liability,  a  careful  analysis  of  the  holdings  of  the  court  will 
show  that  they  are  in  harmony  with  most  of  the  courts  of 
the  states  upon  all  other  questions  touching  the  duties  and  lia- 
bilities of  the  carrier. 

§  489.  The  duty  of  the  common  carrier. — The  duty  of  the 
common  carrier  as  to  the  shipment  of  live  stock  does  not  differ 
very  materially  in  many  particulars  from  the  duty  of  the  com- 
mon carrier  as  to  the  shipment  of  inanimate  freight.  The  car- 
rier must  furnish  for  the  shipper  suitable  stockyards  at  their 
stational  point,  and  what  are  suitable  stockyards  is  a  question 
for  the  jury,  depending,  of  course,  upon  the  country  surround- 
ing the  station,  and  the  extent  of  the  business  of  shipping 

1  TheMichigan  court  cites  M'Manus  2  Lake  Shore  v.  Perkins,  35  Mich. 
V.  Lancashire  Ry.  Co.,  2  Hurl.  &  Nor-  329;  American  Ex.  Co.  v.  Phillips,  29 
man,  702;  Palmer  v.  Grand  Junction  Mich.  515;  Mich.  Cent.  R  Co.  v.  Hale, 
Ry.  Co.,  4  M.  &  W.  758.  quoting  6  Mich.  243;  Great  Western  R.  Co.  v. 
from  Parke,  Baron:  "Does  the  rule  Hawkins,  18  Mich.  427;  Smith  v. 
as  to  negligence  apply  to  live  ani-  Mich.  Cent.  R.  Co.,  100  Mich.  148; 
mals,  as  horses?  Of  course  if  they  Heller  v.  Chicago,  etc.  R.  Co.,  109 
were  stolen  it  would,  but  is  it  so  Mich.  58,  where  the  court  held  "that 
when  they  are  delivered  although  a  railroad  company  in  carrying  live 
hurt  or  damaged?  If  misdelivered,  stock  is  not  chargeable  with  the  com- 
the  carrier  would  be  liable,  but  they  mon-law  liability  of  a  common  car- 
would  not  be  liable  for  a  mere  acci-  rier,  but  is  only  bound  to  transport 
dent  to  a  live  animal  supposing  the  with  ordinary  diligence,  skill  and 
carriage  to  be  safe  and  good  and  care,  and  with  reasonable  dispatch." 
properly  conducted." 

453 


§  489.]  CARRIERS.  [part    V. 

stock.^  They  must  also  furnish  suitable  facilities  for  loading 
stock  into  cars,  and  it  should  be  remembered  that  the  same 
rule  attaches  in  this  class  of  freight  as  that  which  obtains 
where  the  freight  was  inanimate,  namely,  that  when  the  stock 
is  delivered  into  the  custody  and  control  of  the  carrier  by  deliv- 
ering it  for  immediate  shipment  at  their  stockyards,  it  is  from 
that  time  in  transit.  It  is  the  duty  of  the  company  to  furnish 
suitable  cars  for  feeding  the  stock.  This  is  a  matter  that  has 
often  been  before  the  courts.-  There  must  be  cars  suited  to  the 
particular  season  of  the  year,  the  climate  of  the  country,  as  far 
as  may  be,  and  it  has  been  held  that  they  must  be  free  from  in- 
fectious or  contagious  diseases  that  the  stock  would  be  liable 
to  contract  by  shipment  in  them.'  And  where  stock  con- 
tracted a  disease  by  reason  of  shipment  in  the  cars  of  the  com- 
pany, the  company  was  held  liable  for  the  damage;  in  other 
words,  it  was  held  that  this  was  negligence  upon  the  part  of 
the  carrier.  It  is  also  the  duty  of  the  company  to  properly 
feed,  water  and  care  for  the  stock  where  there  is  no  contract 
exempting  them  from  that  liability.  This,  however,  is  a  mat- 
ter that  is  largely  governed  by  special  contract.*  But  even 
where  the  shipper  by  contract  takes  upon  himself  the  duty  to 
look  after  the  feeding  and  watering  of  the  stock,  it  is  incum- 
bent upon  the  carrier  to  furnish  suitable  places  and  means  for 
feeding  and  watering.      The  running  of  the  trains  and  the 

1  Covington  Stockyards  Co.  v.  in  them,  renders  the  railroad  corn- 
Keith,  139  U.  S.  128;  Gulf  R.  Co.  v.  pany  liable  for  damages."  In  Betts  v. 
Trawick,  80  Tex.  370;  Tex.  &  Pac.  R  Chicago,  etc.  R.  Co.,  92  la.  343,  25  L. 
Co.  V.  Fainbrough,  55  S.  W.  182.  R.  A.  248,  it  was  held,  "  a  carrier  is 

2  Coupeland  v.  Housatonic  R.  Co.,  liable  for  injuries  to  live  stock  car- 
61  Conn.  531,  15  L.  R  A«  534,  held,  ried  by  it  if  it  fails  to  provide  cars 
"the  carrier  is  not  an  insurer  of  live  reasonably  safe  to  transport  it." 
stock,  but  must  provide  suitable  *  In  Missouri  Pac.  R  Co.  v.  Fagin. 
means  for  its  conveyance  and  use  all  72  Tex.  127, 2  L.  R.  A.  75,  it  was  held, 
reasonable  diligence  and  forethought  "a  carrier  has  the  duty  to  feed  and 
in  the  varying  circumstances  aris-  water  stock  during  transportation, 
ing  in  the  business."  Bells  v.  Chicago,  and  cannot  transfer  it  to  the  shipper 
etc.  R.  Co.,  92  la.  342:  Great  Western,  by  a  custom  requiring  him  to  go 
etc.  R.  Co.  V.  Hawkins,  18  Mich.  427;  along  on  the  same  train  with  the 
Pratt  v.  Ogdensburg  R.  Co.,  103  Mass.  stock  to  feed  and  water  them  at  his 
557.  his  own  risk  and  expense."    111.  Cent. 

3  In  111.  Cent.  R.  Co.  v.  Harris,  184  R.  Co.  v.  Adams,  42  111.  474:  Toledo. 
111.  57.  48  L.  R.  A.  175,  it  was  held,  W.  &  W.  R  Co.  v.  Thompson,  71  111. 
"  the  communication  of  Texas  fever  734.  See  note  to  Missouri  Pac.  R  Co. 
by  infected  cars,  to  cattle  transported  v.  Fagin,  2  L.  R.  A.  75. 

454 


CH.  VI.]  LIMITATIONS    UPON    LIABILITY,  [§  480^ 

transporting  of  the  stock  is  always  under  the  supervision  and 
controL  of  the  carrier.  And  it  is  the  carrier's  duty  to  stop  his 
trains  at  suitable  places,  and  facilitate  the  unloading,  yarding 
and  caring  for  the  stock,  giving  suitable  time  for  feeding  and 
watering,  and  loading  them  again  into  the  cars.  And  where 
by  contract  it  was  expressly  agreed  that  the  company  was  not 
to  be  charged  with  the  duty  of  feeding  or  watering  the  ani- 
mals that  were  being  shipped,  but  was  to  afford  the  shipper 
proper  facilities  for  doing  so,  the  company  was  held  liable  for 
damage  occasioned  by  reason  of  carrying"the  stock  forty  miles 
beyond  the  station  where  they  were  to  be  fed,  and  keeping 
them  in  the  cars  for  two  days  without  food  or  water  or  care, 
beyond  A.,  where  they  were  to  be  delivered.^ 

"And  where  a  railroad  company  accepts  horses  for  ship- 
ment over  its  road  under  a  contract  which  provides  that  they 
are  to  be  loaded,  unloaded,  fed,  watered  and  cared  for  while 
in  the  cars  by  the  shipper  or  owner,  and  at  his  expense  and 
risk,"  it  was  held  "that  the  company,  as  a  bailee  for  hire,  hav- 
ing control  of  the  cars  in  which  the  horses  are  placed,  is  bound 
at  least  to  furnish  the  shipper  an  opportunity  to  give  the  ani- 
mals the  care  which  they  require."  The  court  in  an  opinion 
say:  "  The  provision  in  the  contract  that  the  stock  is  to  be 
loaded,  unloaded,  fed,  Avatered  and  otherwise  cared  for  while 
in  the  cars  by  the  shipper  or  owner  does  not  mean  that  the 
duty  is  to  be  performed  by  the  shipper  while  the  train  is  in 
motion,  and  without  being  afforded  an  opportunity  by  the  com- 
pany to  perform  the  duty.  If  the  provision  should  be  given 
any  force,  it  creates  a  very  fair  inference  that  the  company 
will  afford  the  shipper  the  opportunity  to  perform  the  duty 
which  it  has  seen  fit  to  provide  shall  rest  upon  him."  ^ 

It  is  also  the  duty  of  the  carrier  to  furnish  facilities  for  un- 
loading the  stock  at  its  destination  and  for  keeping  them  until 
delivered  to  the  consignee.''  And  so  where  the  carrier  al- 
lowed its  stock  pens  to  become  in  a  condition  unfit  to  hold 
the  stock  on  account  of  the  fences  being  rotten  and  insecure, 

1  Bryant  v.  S.  W.  Ry.  Co.,  G8  Ga.  3  Chesapeake  R.  Co.  v.  American 
80.J.  Exchange   Bank,  93  Va.   495;  Gulf, 

2 Smith  V.  Railway  Co.,  100  Mich.  etc.  Co.  v.  York,  2  Tex.  App.  Civ. 
148,  156,  45  Am.  &  Eng.  R.  Cas.  348.     Cases,  sec.  812, 

455 


^§    -ilX),  491.]  CARKIEKS.  [part    V. 

the  carrier  was  held  liable  for  cattle  that  escaped  from  them.^ 
All  these  duties  and  obligations  are  laid  upon  the  carrier  be- 
cause of  the  rule  of  law  that  demands  that  he  shall  at  all  times 
be  diligent  and  do  whatever  is  necessary  to  be  done  in  order 
to  safely  transport  the  stock  which  he  is  employed  to  carry, 
and  deliver  it  to  the  consignee.  As,  for  example,  it  has  been 
held  that  it  was  the  duty  of  the  carrier  to  prevent  the  injury 
of  animals  because  of  excessive  heat  when  it  can  be  reasonably 
done.- 

§  490.  Statutes  of  United  States  with  reference  to  duties 
of  the  carrier. —  Statutes  have  been  passed  both  by  the  United 
States  congress  and  the  legislatures  of  the  states  regulating  the 
duties  of  common  carriers,  especially  their  duties  with  refer- 
ence to  the  carriage  of  live  stock.  ^Ye  have  not  space  here  to 
cite  and  quote  statutes.  Notable  among  the  statutes  in  this 
respect  are  those  requiring  the  common  carrier  to  feed  and 
water  stock  in  transit,  providing  that  they  shall  not  be  in  the 
cars  consecutively  for  more  than  twenty-eight  hours.  Xotice 
the  statutes  of  the  different  states  and  of  the  United  States. 

§  491.  The  shipper  must  deal  fairly  with  the  carrier. —  It 
is  a  duty  incumbent  upon  the  shipper  to  deal  fairly  with  the 
carrier.  If  he  knows  of  any  peculiarity  of  the  animals  that 
would  increase  the  risk  or  liabilitv  of  the  carrier,  he  should 
disclose  it  at  the  time  of  making  the  shipment.  As,  for  exam- 
ple, that  the  animals,  or  any  of  them,  are  wild,  ungovernable 
or  vicious,  or  liable  to  injure  the  others;  or,  if  they  have  been 
exposed  to  any  disease,  especially  infectious  or  contagious  dis- 
ease which  might  be  communicated  or  infect  the  cars  or  yards 
of  the  carrier. 

It  goes  without  saying  that  if  the  shipper  has  by  reason  of 
failure  to  disclose  any  conditions  or  facts  known  to  him,  the 
withholding  of  which  results  in  injuiy  or  damage  to  others,  and 
also  in  subjecting  the  carrier  to  the  payment  of  damages,  he 
is  liable  to  the  carrier  for  the  damages  which  are  shown  to 
result  from  such  unfair  action  upon  his  part.  It  is  but  another 
application  of  the  principle  that  the  shipper   must   be  held 

1  Cooke  V.  Kansas  City,  etc.  R.  Co.,  76  111.  393;  Sturgeon  v.  St.  Louis.  et<\ 
57  Mo.  App.  471.  R.  Co.,  65  Mo.  569;  Heller  v.  Chicago 

2  111.  Cent.  R.  Co.  v.  Adams.  42  111.  &  Grand  Trunk  R.  Co.,  109  Mich.  53. 
474;  Toledo,  etc.  R.  Co.  v.  Hamilton. 

456 


CII.  VI.]  LIMITATIONS    UPON    LIABILITY.  [§  492. 

liable  for  damages  resulting  from  bis  own  fault;  but  sucb  con- 
duct of  the  shipper  will  not  excuse  the  carrier  for  negligence 
in  shipping,  transporting  or  delivering  the  goods.^ 

Section  YI. 

Where  the  Loss  or  Injury  is  Occasioned  from  the  Exer- 
cise OF  Public  Authority. 
§  492.  The  reasons  for  the  exception. —  The  reason  that 
this  exception  obtains  is  apparent.  Public  law  and  authority 
must  dominate  and  govern  all  persons,  companies  and  business 
within  its  jurisdiction.  Upon  that  depends  their  protection, 
and  at  its  hands  they  must  accept  rules  governing  their  lia- 
bility. So,  where  the  law  or  public  authority  is  set  in  motion 
it  is  presumed  to  do  justice,  and  whomsoever  it  affects  must 
accept  the  consequences  of  its  just  adjudication.  As  where 
goods  are  delivered  to  a  common  carrier  for  shipment,  and 
are  levied  or  attached  in  the  hands  of  the  carrier  upon  a 
valid  writ  of  attachment  or  execution,  by  means  of  which 
the  carrier  is  deprived  of  the  possession  of  the  property  by 
the  officer  who  serves  the  writ,  the  carrier  is  not  liable  for 
the  non-delivery  of  the  goods,  provided  the  writ  upon  its  face 
is  a  valid  writ,  and  from  a  court  having  competent  juris- 
diction to  issue  it.  "Where  plaintiffs  delivered  to  defendants 
certain  goods  consigned  to  themselves  which  were  seized  and 
taken  from  the  carrier  by  a  sheriff  upon  a  writ  of  attachment, 
the  writ  under  which  the  sheriff  acted  being  a  valid  one,  it 
was  held  that  "a  carrier  in  possession  of  the  consignor's  goods 
is  clothed  with  all  the  power  and  authority  to  protect  them  that 
the  owner  himself  would  have;  and  while  the  goods  are  in 
transit  it  is  his  duty  to  use  all  the  means  that  human  agency 
can  command  to  give  such  protection,  and  it  is  only  after  such 
means  are  exhausted  that  he  can  be  heard  in  his  defense  against 
the  liability  the  common  law  casts  if  injury  or  damage  ensue." 
The  court  say:  "In  this  case  the  court  finds  that  the  goods 
in  question  were  taken  by  the  sheriff  without  the  consent,  con- 

'  American  Exp.  Co.  v.  Smith,  33  tliem  fartlier;  the  carrier  sold  them 
Ohio  St.  511.  Peaches  were  shipped  for  the  best  price  obtainable,  and  it 
by  the  carrier.  On  account  of  a  was  held  that  he  was  not  liable,  and 
bridge  being  washed  away  by  a  discharged  his  duty  in  selling  the 
fresiiet  it  was  impossible   to  carry    property. 

457 


§  492.]  CARRIERS.  [part   V. 

nivance,  privity  or  procurement  of  the  defendant,  and  that  it 
immediately  notified  the  plaintiffs  of  the  seizure;  but  this  is  not 
enough  to  exculpate  the  defendant  from  liability,  under  the 
facts  found.  There  is  no  pretense  that  the  writ  under  which 
the  sheriff  acted  ran  against  the  defendant,  the  consignors  or 
this  property,  nor  yet  against  the  latter's  vendor  of  the  goods. 
It  does  not  appear  that  he  was  directed  by  the  writ  to  levy  it 
upon  any  specific  property  in  the  custody  of  the  defendant  or 
of  the  consignors.  Prima  facie  he  had  no  more  right  to  enter 
the  car  and  take  these  goods  than  had  any  other  trespasser. 
It  appears  from  the  record  that  the  defendant  knew  nothing 
in  regard  to  the  title  of  the  property  more  than  what  it  ob- 
tained from  the  consignors;  and  it  nowhere  appears  that  the 
defendant  was  informed  by  the  sheriff,  or  any  other  person, 
upon  what  ground  the  plaintiffs  in  the  writ,  or  himself,  claimed 
the  right  to  seize  the  property.  .  .  .  The  defendants  suf- 
fered the  property  to  be  taken  from  the  carrier  by  a  tres- 
passer, and  this  brings  the  case  clearly  within  the  liability  of 
the  undertaking,  and  entitles  the  plaintiff  to  a  recover3\"  ^  So 
it  follows  that  the  carrier  may  resist  this  authority  where  it 
appears  that  the  goods  are  not  the  property  of  the  defendant  in 
the  attachment. 

iPingree  v.  D.  L.  R  Co.,  66  Mich.  143;  Simpson  v.  Dufour,  126  Ind.  323. 

458 


CHAPTER  YII. 


WHEN  THE  DAMAGE  OR   INJURY  IS  THE  RESULT  OF  DEVIA- 
TION OR  DELAY. 


493.  Implied    undertaking  of  the 

carrier. 

494.  Notice  to  the  carrier. 

495.  What  is  unreasonable  de- 
lay —  How  avoided. 

496.  Reasonable  diligence. 

497.  Delay  occasioned  by  deviation 

from  route. 

498.  Loss  or  injury  occurring 

on  deviated  route  —  Act  of 
God  or  public  enemy,  etc. 


§5  499, 


500. 


Often  duty  of  the  carrier 

to  delay  or  deviate  from 
course. 

When  delay  and  deviation  on 
account  of  strikes  or  riots. 

501.  May  discriminate  as  to  ship- 

ping perishable  goods. 

502.  Duty  of  carrier  as   to  goods 

after  disaster. 


§493.  Implied  iindertaking  of  the  carrier. —  The  carrier 
impliedly  undertakes  on  receiving  the  goods  for  shipment  that      v 
he  will,  without  unreasonable  delay,  transfer  them  by  his  own  '^j 
route,  or  the  route  he  is  using  and  has  the  right  to  use  or  con-  J j 
trol,  to  their  destination,  and  without  deviation  from  the  usual 
line  or  lines  of  transportation,  and  within  a  reasonable  time 
deliver  the  goods  to  the  consignee  at  the  point  to  which  they 
were  shipped.^     In  some  of  the  states  this  prompt  shipment 
and  forwarding  of  the  goods  is  required  by  statute.  A  common 
carrier,  as  we  have  seen,  may  be  excused  from  receiving  goods 
for  shipment  for  certain  reasons,  among  which  is  that  he  has 
not' sufficient  facilities  for  handling  the  goods;  but  he  is  bound 
to  know  when  he  accepts  the  goods  that  he  can  ship  them ; 


1  Hales  V.  London  &  N.  W.  R.  Co., 
4  B.  &  S.  Rep.  Q.  B.  66, 116  E.  C.  L.  66. 
Blackburn,  J.,  said:  '"The obligation 
of  the  carrier  to  carry  dep.^nds  on  his 
public  profession,  and  therefore  he  is 
bound  to  carry  only  according  to  the 
route  that  he  holds  out  to  the  public. 
But  he  is  bound  to  deliver  in  a  rea- 
sonable time,  having  regard  to  that 
route.  It  is  no  breach  of  his  duty 
that  he  does  not  carry  by  a  shorter 


route  than  that  which  he  professes. 
If  the  customer  wishes  his  goods  .sent 
by  a  shorter  route  than  the  accus- 
tomed one  he  should  ask  for  it,  and 
if  refused  he  could  exercise  his 
choice  of  sending  by  another  carrier; 
but  when  the  goods  are  sent  by  the 
usual  route  the  carrier  must  use  rea- 
sonable diligence,  and  whether  he 
has  done  so  is  a  question  of  fact." 


459 


§  404:.]  CAERIERS.  [part    V. 

that  he  has  or  can  obtain  facilities  for  shipping  them  in  a  rea- 
sonable time.  He  cannot  remain  silent  as  to  this,  receive  the 
goods,  hold  them  in  his  warehouse  to  the  damage  of  the  ship- 
per or  consignee,  and  answer  that  for  want  of  facilities  he  did 
not  ship  them.  In  such  case  it  is  the  duty  of  the  carrier  to 
give  the  shipper  notice  of  the  situation,  that  he  is  unable  to  ship 
at  once  because  of  lack  of  means  of  transportation,  thus  giving 
the  shipper  the  option  of  shipping  them  by  another  carrier  if 
he  desires,  or  leave  them  with  the  carrier  making  the  excuse. 
Under  certain  circumstances  the  carrier  would  be  excused  if 
his  business  becomes  congested  and  there  is  such  a  press  of  busi- 
ness that  the  carrier  cannot  transport  the  goods  at  once.  In 
such  case,  however,  if  the  carrier  has  notice  of  the  fact,  or  of 
facts  from  which  he  might  reasonably  conclude  that  that  would 
be  the  result,  his  duty  is  to  give  the  shipper  notice  of  the  con- 
dition, and  that  he  cannot,  or  probably  cannot,  transport  the 
goods  at  once;  in  other  words,  if  the  carrier  has  no  legal  rea- 
son for  not  complying  with  the  requost  or  demand  of  the  ship- 
per for  immediate  shipment,  he  is  bound  to  notify  him  in  order 
that  he  may  have  the  option  above  mentioned.  So,  where  a 
plaintiff  delivered  to  an  express  company  venison  for  shipment 
on  the  promise  of  the  agent  to  forward  it  by  a  certain  train, 
and  such  train  did  not  stop  for  express  matter,  and  the  agent 
gave  no  further  notice  to  the  shipper,  but  forwarded  it  by  a 
train  several  hours  later,  and  the  venison  was  spoiled  by  the 
delay,  the  express  company  was  held  to  be  liable  for  the  loss.^ 

§  494.  Notice  to  the  carrier. —  It  seems,  too,  that  the 

law  recognizes  that  where  the  shipper  has  given  to  the  carrier 
notice  that  he  desires  the  freight  to  be  forwarded  at  once  be- 
cause he  has  immediate  use  for  it,  or,  as  is  sometimes  the  case, 
that  it  is  for  the  purpose  of  filling  a  certain  contract,  in 
such  case  the  carrier  will  be  held  bound  where  he  receives  the 
goods  for  shipment  to  fulfill  the  contract  of  affreightment  so  as 
to  comply  with  the  notice  given  by  the  shipper.  And  where 
the  carrier  was  informed  by  the  shipper,  at  the  time  of  deliver- 
ing certain  horses  to  be  shipped  to  Alaska,  that  the  purpose 
in  shipping  the  horses  was  to  use  them  in  freighting  goods, 
and  that  there  was  a  great  demand  at  that  point  for  horses  of 
the  kind  he  was  shipping,  and  that  he  could  make  a  large  amount 

1  Cantwell  v.  Pacific  Ex.  Co.,  58  Ark.  487. 
460 


CH.  VII.]      DAMAGE  OR  IN.IUKY  FKOM  DEVIATION  OR  DELAY.      [§  4^4:. 

of  money  each  day  by  the  use  of  them,  and  wanted  them 
delivered  at  a  certain  time,  and  they  were  not  delivered  until 
twenty-seven  days  after  the  time  agreed  on,  the  evidence  show- 
ing that  during  the  interval  between  the  time  when  the  horses 
Avere  to  arrive  and  the  date  of  their  arrival  they  could  have 
earned  a  large  amount  of  money,  it  was  held  that  in  estimat- 
ing the  plaintiff's  damage  the  jury  might  consider  what  might 
have  been  earned  by  the  horses  during  the  time  of  delay;  the 
court  saying  "  that  the  general  rule  is  thus  stated :  No  recov- 
ery can  be  had  for  loss  of  profits  in  contracts  of  sale  or  con- 
templated by  the  shipper  unless  the  facts  and  circumstances  of 
such  sale  are  communicated  to  the  carrier  upon  shipment."  ^ 
The  reason  of  the  rule  is,  that  the  contract  of  affreightment  is 
presumed  to  have  been  made  in  view  of  the  results  which  to 
the  knowledge  of  both  parties  thereto  would  naturally  follow 
its  breach.  While  there  is  respectable  authority  for  holding 
that  profits  are  never  in  any  case  recoverable,  since  it  may 
never  be  known  what  profits  might  have  been  earned,  the 
weight  of  authority,  both  English  and  American,  sustains  the 
rule  that  the  party  injured  is  entitled  to  recover  all  his  dam- 
ages, including  gains  which  he  might  have  earned  as  well  as 
losses  that  he  sustained,  provided  they  are  certain,  and  are 
such  as  might  naturally  have  been  expected  to  follow  the 
breach. 

This  rule  does  not  run  counter  to  that  settled  rule  of  dam- 
ages, that  profits  which  are  remote  or  uncertain,  mere  ex- 
pected profits  depending  upon  numerous  contingencies,  can- 
not be  recovered  because  they  cannot  be  said  to  be  the  direct 
and  immediate  result  of  the  non-fulfillment  of  the  contract  or 
agreement;  the  question  under  discussion  is  a  very  different 
one,  depending  upon  a  very  different  state  of  facts;  here  the 
parties  had  in  mind  the  very  profits  that  could  be  made,  as 
where  it  is  known  and  understood  that  the  goods  are  in  de- 
mand at  a  certain  price  if  they  can  be  delivered  at  a  certain 
time,  the  shipper  giving  the  "carrier  notice  of  this  and  contract- 
ing to  ship  the  goods  to  fill  the  particular  demand,  or  perhaps 

1  Pac.  Express  Co.  v.  Darnell  Bros.,  ing  Co.  v.  Pinch,  91  Mich.  15G;  Grind- 
63  Tex.  639;  Brown  v.  Hadley,  43  ley  v.  Express  Co.,  67  Me,  317;  111. 
Kan.  267,  23  Pac.  492;  Brownell  v.  Cent.  R  Co.  v.  Cobb  et  al.,64  111,  128. 
Chapman,  84  Iowa,  504;  Manufactur- 

461 


§  494]  CARRIERS.  [part    V. 

to  fill  a  certain  order  at  an  advanced  price.  The  shipment  is 
made  for  this  purpose,  and  the  carrier  linowing  it,  and  making 
the  contract  for  the  purpose  of  carrying  out  the  object  of  the 
shipment,  in  such  case  every  sentiment  of  justice  woukl  de- 
mand that  the  carrier  should  be  compelled  to  fulfill  his  con- 
tract, and  certainly,  if  he  knows  that  he  cannot,  instead  of 
receiving  the  goods  for  shipment  he  should  notify  the  ship- 
per that  he  is  unable  to  carry  the  goods  as  desired;  but  if  the 
contract  is  made  in  contemplation  of  such  a  state  of  facts,  it 
may  be  said  in  case  of  failure  on  the  part  of  the  carrier  that 
the  damages  resulting  from  such  failure  were  contemplated 
by  the  parties  at  the  time  of  making  the  contract,  and  the  car- 
rier would  be  liable.  If  the  property  shipped  is  for  immediate 
use,  and  the  object  is  well  understood  by  the  carrier  because 
of  receiving  notice  thereof  from  the  shipper  at  the  time  of  the 
shipment,  then  if  the  carrier  fails  and  damages  result,  the  car- 
rier would  be  liable  upon  the  same  theory;  for  the  resulting 
damages  must  have  been  contemplated  at  the  time  of  making 
the  contract  of  shipment.  This  has  already  been  illustrated  by 
the  case  of  Pacific  Exp.  Co.  v.  Darnell  Bros.^  Such  damages 
cannot  be  said  to  be  speculative  or  depending  upon  uncertain 
contingencies.  Nor  are  they  remote  from  the  contract  made 
by  the  parties,  for  the  situation  was  fully  known  and  contem- 
plated —  indeed,  was  a  part  of  the  contract,  and  somewhat  in  the 
nature  of  a  condition  in  the  minds  of  the  parties  making  the 
contract,  which  should  be  complied  with.^ 

1 62  Tex.  639,  and  cases  cited  ante,  "  The  principle  is  now  settled  that 

§  494.  whenever  either  the  object  of  the 

2 In  Hadley  v.  Baxendale,  26  Eng.  sender  is  especially  brought  to  the 

Law  &  Eq.   389,  Alderson,  B.,  said:  notice  of    the    carrier,    or    circum- 

"  Where  two  parties  have  made  a  stances  are   known   to  the    carrier 

contract   which    one    of    them   has  from  wliich  the  object  ought  in  rea- 

broken,  the  damage  which  the  other  son  to  be  inferred,  so  that  the  object 

party  ought  to  receive  in  respect  of  may  be  taken  to  have  been  within 

such  breach  arising  naturally,  i.  e.,  the  contemplation  of   both  parties, 

according  to  the  natural  course  of.  damages  may  be  recovered  for  the 

things,  from  such  breach  of  the  con-  natural  consequences  of  proof  of  that 

tract  itself,  or  such  as  may  reason-  object."     Howard  v.  Manufacturing 

ably  be  supposed  to  have  been  in  the  Co.,  139  U.  S.  199;  Railroad  Co.  v.  Hale, 

contemplation  of  both  parties  at  the  83  111.  360;  AUis  v.  McLean,  48  Mich, 

time  they  made  the  contract  as  the  428;  Harvey    v.    Railroad    Co.,    124 

probable    result    of  the    breach    of  Mass.  421;   Sedgwick  on  Dam.  (8th 

it."    And  Cockburn,  J.,  in  Simpson  v.  ed.),  174. 
Railroad  Co.,  1  Q.  B.  D.  274,  said: 

463 


Cir.   VII.]        DAMAGE  OR  INJURY  FROM  DEVIATION  OR  DELAY.        [§  495. 

In  Mamifachiring  Go.  v.  Plnch'^  the  Michigan  court  held 
that  in  a  suit  to  recover  for  machinery  and  repairs  furnished 
for  defendant's  flouring  mill,  he  was  entitled  to  show  in  reduc- 
tion of  plaintiff's  claim  the  value  of  the  use  of  the  mill  while 
it  was  compelled  to  lie  idle  because  of  the  failure  of  the 
plaintiff  to  complete  the  contract  to  repair  within  the  time 
specified. 

In  Clarice  v.  Needles''  it  was  held,  "if  goods  are  received  by 
common  carriers  with  orders  to  ship  immediately,  and  are 
stored  in  their  warehouse,  the  navigation  being  obstructed,  and 
there  consumed  by  fire,  they  are  liable  for  the  value  to  the 
owner  as  common  carriers."  And  where  cattle  were  deliv- 
ered for  shipment  to  the  common  carrier,  it  was  held  that  a 
"  conversation  had  with  the  agent  of  the  carrier  shortly  before 
the  execution  of  the  contract  was  admissible  to  show  notice  to 
the  carrier  of  the  plaintiff's  intention  to  sell  his  cattle  on  a 
particular  day;"  and  it  appearing  that  the  cattle  were  un- 
loaded through  defendant's  mistake,  and  upon  being  reloaded 
into  the  same  car  a  broken  wheel  was  discovered  which  neces- 
sitated additional  delay,  so  that  the  cattle  were  delivered  to 
the  connecting  carrier  some  seven  hours  after  they  should  have 
been  delivered,  and  arrived  at  their  destination  some  five  hours 
too  late  for  that  day's  market,  it  Avas  held  that  it  was  a  ques- 
tion for  the  jury  whether  or  not  such  delay  was  unreasonable 
and  attributable  to  defendant's  negligence.* 

§  495.  What  is  unreasonable  delay  —  How  avoided. — 

"What  is  unreasonable  delay  in  the  shipping  or  transportation 
of  the  goods  is  a  question  of  fact  for  the  jury  depending  upon 
very  many  circumstances;  the  kind  of  goods  that  are  shipped, 
the  weather,  season  of  the  year,  the  press  of  business, —  no 
fixed  rule  can  be  laid  down  that  will  define  it  or  govern  in 
determining  it  in  all  cases;  the  circumstances  of  each  particu- 
lar case  must  determine  the  question.  The  court,  in  the  case 
of  McGraw  v.  Baltimore  &  O.  R.  Co.^^  said:  "The  obliga- 
tion of  the  common  carrier  is  to  transport  the  goods  safely 
and  within  a  reasonable  time,  but  what  is  a  reasonable  time 

196  Mich.  156.  Cases,  188,  41  Am.  Rep.  696;  Vicks- 

■'^25  Pa.  St.  338.  burg  v.  Ragsdale,  46  Miss.  458;  Cobb 

3  Mo.  Pac.  R.  Co.  V.  Hall.  66  Fed.  868.  v.  111.  Cent.  R.  Co.,  38  Iowa,  601. 

4  18  W.  Va.  361,  9  Am.  &  Eng.  R. 

463 


§  49G.]  CAEKIEKS.  [part   V, 

is  not  susceptible  of  being  defined  by  any  general  rule;  the  cir- 
cumstances of  each  particular  case  must  be  adverted  to  in  order 
to  determine  what  is  a  reasonable  time  in  that  case.  But  it 
may  be  said  that  the  mode  of  conveyance,  the  distance,  the 
nature  of  the  goods,  the  season  of  the  year,  the  character  of 
the  weather,  and  the  ordinary  facilities  of  transportation  are 
to  be  considered  in  determining  whether  in  the  particular  case 
there  has  been  an  unreasonable  delay." 

§  496.  Same  subject  —  Reasonable  diligence. —  From  what 
has  been  said  it  may  be  concluded  that  the  general  rule  is 
that  the  carrier  is  liable  for  any  damage  resulting  from  delay 
in  transporting  the  goods  when  the  delay  is  attributable  to 
the  negligence  of  the  carrier  or  his  servants;  but  when  it  ap- 
pears that  he  is  not  guilty  of  negligence,  but  on  the  contrary 
has  done  all  that  could  be  reasonably  expected  of  him,  and  has 
been  diligent  in  his  undertaking  to  deliver  the  goods,  then  in 
the  absence  of  an  express  contract  for  the  delivery  upon  a  cer- 
tain time  he  will  not  be  held  liable;  reasonable  diligence  will 
excuse  the  failure  upon  the  implied  contract  or  undertaking. 
The  carrier  is  bound  to  deliver  the  goods  at  their  destination 
within  a  reasonable  time,  except  when  he  is  under  an  express 
contract  to  do  so  at  a  stated  time.  The  duty  to  so  deliver  is  an 
implied  duty,  but  it  may  be  overcome  by  proofs  on  the  part  of 
the  carrier  showing  that  he  has  used  all  reasonable  care  and 
diligence  in  transporting  the  freight,  and  that  the  delay  was 
not  occasioned  on  account  of  his  fault  or  negligence,  but  be- 
cause of  unforeseen  and  unavoidable  hindrance  or  misfortune, 
or  unavoidable  accident  not  necessarily  the  result  of  the  act  of 
God  or  the  public  enemy,  but  such  circumstances  and  condi- 
tions, even  though  they  resulted  from  the  act  of  man,  that  he 
could  not  by  ordinary  diligence  avert.  As  was  said  in  McGrato 
V.  Baltimore  c&  0.  E.  Co. :  ^  "It  is  obvious  that  ordinarily  the 
delay  in  shipping  articles  not  liable  to  decay  or  damage,  such 
as  iron,  wool,  cotton,  grain,  and  things  of  like  character  not 
liable  to  be  injured  by  a  few  days'  delay,  would  be  no  test  in  a 
case  where  the  delay  of  a  day  in  transportation  would  result 
in  loss  or  damage  by  reason  of  their  nature  or  inherent  char- 
acter, such  as  live  stock,  fish,  oysters,  fruits,  vegetables  and 
things  of  like  character.     In  the  one  case  there  is  nothing  in 

118AV.  Va.  361,  367. 
464 


CH.  VII.]      DAMAGE  OK  INJURY  FROM  DEVIATION  OE  DELAY.       [§  496. 

the  thing  itself  which  would  induce  a  prudent  business  man  to 
anticipate  injury  from  a  temporary  delay  in  transportation, 
while  in  the  other  case  no  prudent  business  man,  from  the  nat- 
ure of  the  thing  itself,  might  reasonably  anticipate  the  loss  or 
damage  from  delay.  So  the  season  of  the  year  is  an  element 
to  be  considered ;  some  articles,  as  some  kinds  of  vegetables,  being 
of  that  nature  that  at  certain  seasons  of  the  year  a  brief  delay 
would  be  harmless,  whereas  in  another  season  of  the  year  the 
dela}''  would  result  in  loss  or  damage."  And  so  where  the 
delay  complained  of  occurred  upon  the  mountain  division  of  a 
road,  and  was  occasioned  by  an  unexpected  storm  of  unusual 
severity  upon  that  division,  the  operator  of  the  road  using  every 
reasonable  effort  to  keep  the  line  open,  it  was  held  that  the 
carrier  was  not  liable;  that  a  common  carrier  is  liable  for  delay 
in  the  transportation  and  delivery  of  goods  only  when  it  is 
caused  by  his  want  of  ordinary  care  and  diligence.^  And  where 
a  carrier's  canal-boat  was  run  into  by  a  scow  which  made  it 
necessary  for  him  to  stop  for  repairs,  the  delay  thus  occasioned 
was  held  excusable.-  And  the  same  was  held  where  the  delay 
was  on  account  of  deep  snow  which  made  the  road  temporarily 
impassable;  or  from  the  washing  away  of  a  bridge  by  a  storm 
and  freshet.  It  ma}'^  be  said,  however,  that  the  rule  governing 
the  liability  of  the  carrier  for  delay  is  very  different  from  the 
measure  of  liability  in  case  of  loss  or  injury  to  the  property. 
For  delay  in  transporting  and  delivering  the  merchandise  at 
its  destination  the  law  holds  the  carrier  for  liability  on  account 
of  his  negligence,  while  for  loss  or  injury  of  the  property  he  is 
held  not  on  account  of  negligence  or  fault,  but  as  an  insurer, 
to  be  excused  only  where  the  loss  or  injury  was  the  result  of 
the  act  of  God,  the  public  enemy,  the  act  of  the  shipper,  the 
inherent  nature  of  the  goods,  the  requirements  of  the  law  or 
of  public  authority. 

1  Palmer  v.  Atchison,  etc.  R.  Co.,  him  within  what  would  be  under 
101  Cal.  187.  ordinary  circumstances  a  reasonable 

2  Parson  v.  Hardy,  14  Wend.  215;  time;  he  may  excuse  delay  by  acci- 
Balentine  v.  Railroad  Co.,  40  Mo.  491 ;  dent  or  misfortune,  not  inevitable  or 
Hutch,  on  Carriers,  sec.  331.  In  Geis-  produced  by  the  act  of  God,  but  the 
mer  v.  L.  S.  &  N.  R.  Co.,  103  N.  Y.  result  of  the  conduct  of  men;  all 
563,  it  was  held  that  "in  the  absence  that  can  be  required  of  him  is  that 
of  special  contract  there  is  no  abso-  he  exercise  due  care  and  diligence  to 
lute  duty  resting  upon  a  common  guard  against  delay  and  to  forward 
carrier  to  deliver  goods  intrusted  to  the  goods  to  their  destination." 

30  4Go 


§§  497,  498.]  CARRIERS.  [part  v. 

§  497.  Delay  occasioned  by  deviation  from  route. —  Where 
the  delay  is  occasioned  on  account  of  deviation  from  the  usual, 
ordinary  and  expected  route  of  the  carrier  in  conveying  the 
goods,  it  then  becomes  more  serious.  As  we  have  seen,  there 
is  an  implied  contract  binding  upon  the  carrier  to  carr}''  the 
goods  over  his  own  line,  and  if  they  are  to  be  forwarded  over 
other  lines  to  send  them  by  the  usual  route  to  their  destina- 
tion. So,  where  goods  are  conveyed  by  ship  or  boat  the  same 
presumption  and  implied  understanding  exists,  and  the  ques- 
tion is,  under  what  circumstances  may  the  carrier  deviate  from 
this  course.  If  the  deviation  from  the  route  is  unnecessarv, 
there  seems  to  be  no  question  but  that  the  carrier  would  be  lia- 
ble; for  by  deviating  from  the  route  he  becomes  a  wrong-doer; 
but  where  it  is  necessary,  and  the  necessity  arises  during  the 
time  the  goods  are  in  transit,  and  the  carrier  has  exhibited  a 
sound  discretion  in  making  the  deviation,  it  seems  that  the 
carrier  would  not  be  liable. 

§  498.  Loss  or  injury  occurring  on  deviated  route  — 

Act  of  God,  public  enemy,  etc. —  Upon  the  consideration  of 
this  question,  necessarily  arises  the  further  question  as  to  the 
liability  of  the  carrier  for  loss,  even  though  it  is  occasioned  by 
the  act  of  God,  the  public  enemy,  or  those  causes  which  are 
said  to  excuse  the  carrier  when  they  are  the  direct  result  of 
the  loss.  And  here  again  we  are  met  with  the  question  as  to 
whether  the  deviation  is  necessary;  whether  it  occurred  dur- 
ing the  time  the  goods  are  actually  in  transit,  and  whether  the 
carrier  exercised  sound  discretion.  It  seems  to  be  well  under- 
stood, as  we  have  already  stated,  that  the  carrier  cannot  un- 
necessarily deviate  from  his  route;  that  the  shipper,  when  he 
intrusted  his  goods  to  the  carrier,  did  it  with  the  understand- 
ing that  they  would  be  carried  over  the  usual  route  of  the 
carrier.  But  there  often  come  times  while  the  goods  are  in 
transit  where  sound  discretion  and  ordinary  diligence  dictate 
that  to  proceed  upon  the  course  would  be  to  encounter  great 
danger,  with  a  probable  loss  of  the  property  in  transit.  As, 
for  example,  where  a  ship  is  proceeding  with  her  cargo  and 
encounters  serious  danger  by  floating  ice,  sound  discretion  and 
good  judgment  would  dictate  that  the  course  of  the  vessel 
should  be  changed,  and  that  she  should  undertake  to  make  her 
port  by  some  other  course  than  that  usually  pursued,  because 

466 


CH.  VII.]       DAMAGE  OR  INJURY  FROM  DEVIATION  OR  DELAY.       [§  498. 

to  pursue  the  usual  course  the  master  would  encounter  perils 
and  dangers  that  could  not  be  successfully  overcome.  It  seems 
safe  to  say  that  when  the  deviation  occurs  during  the  time  the 
goods  are  in  transit  and  is  necessary,  and  good  judgment  and 
sound  discretion  are  used,  in  such  case  the  carrier  would  be 
heard  to  make  the  usual  defenses  that  would  excuse  him  if 
there  was  loss  or  injury.  But  if  he  deviates  from  the  course 
unnecessarily,  then  he  cannot  be  excused  from  loss,  even 
though  while  upon  the  changed  course  the  loss  should  occur 
by  storm,  tempest,  lightning,  or  an  act  of  God,  or  even  by  the 
public  enemy,  or  by  reason  of  the  causes  which  usually  excuse 
the  carrier,  and  which  would  excuse  him  in  this  case  had  he 
proceeded  without  deviation  and  by  his  usual  route.  A  case 
often  cited  is  the  case  of  Crosby  v.  Fitch}  This  was  an  action 
to  recover  damages  for  the  loss  of  fifty-two  bales  of  cotton  be- 
longing to  the  plaintiff  upon  the  defendant's  boat,  shipped  at 
New  York  to  be  transported  to  Norwich.  It  was  claimed  by 
the  plaintiff  that  the  usual  route  from  New  York  to  New  Lon- 
don and  Norwich  was  through  Long  Island  Sound;  that  the 
master  sailed  from  New  York  with  the  sloop  having  the  cot- 
ton on  board  and  departed  from  such  usual  route,  going  out- 
side of  Long  Island  Sound  to  the  port  of  New  London  without 
any  adequate  or  justifiable  necessity;  that  by  means  thereof 
the  sloop  and  the  cotton  were  exposed  to  a  severe  storm  while 
outside  of  Long  Island  and  thus  the  cotton  was  lost.  The  de- 
fendant claimed  that  navigation  of  Long  Island  Sound  was 
obstructed  by  ice,  and  that  it  was  uncertain  at  what  time  the 
Sound  would  become  navigable,  and  in  the  opinion  of  the  mas- 
ter it  would  not  become  navigable  for  several  days;  that  the 
closing  of  the  Sound  by  ice  for  so  long  a  period  was  unusual, 
and  that  to  have  remained  in  the  port  at  New  York  would 
have  exposed  their  cargo  to  considerable  loss  and  damage 
from  fire,  thieves  and  other  causes.  It  was  conceded  upon  the 
trial  that  the  usual  track  of  the  vessel  from  New  York  to  New 
London  and  other  eastern  ports  was  through  Long  Island 
Sound  both  summer  and  winter.  The  court,  in  its  opinion, 
say:  "Was  the  master  in  the  present  instance  justified  in  de- 
parting from  this  route  and  performing  his  voyage  through 
the  open  sea  on  the  south  side  of  Long  Island  in  the  month  of 

1 13  Conn.  410, 421. 
467 


§  499.]  CABRIERS.  [PAKT  V. 

February?    "Was  there  any  reasonable  necessity  for  this?    We 
think  there  was  not.     The  claim  is  that  the  navigation  of  the 
sound  was  obstructed  by  ice  and  so  continued  longer  than  had 
been  usual  in  former  seasons.     Still,  we  see  no  necessity  for 
the  sailing  of  this  vessel  while  this  obstruction  continued.    The 
obstruction  was  of  such  a  nature  that  the  master  and  all  con- 
cerned knew  that  at  a  day  not  very  remote  it  must  be  reuioved. 
This  was  known  when  the  goods  were  placed  on  board.    There 
was  no  contract  which  rendered  it  the  duty  of  the  master  to 
sail  by  a  given  time,  or  to  complete  his  voyage  before  a  speci- 
fied day,  and  if  there  had  been,  the  freezing  of  the  Sound  and 
the  unusual  continuance  of  the  obstruction  was  such  an  act  of 
God  as  would  probably  have  justified  a  longer  stay  in  the  port 
of  departure.     The  distinction  is  a  very  obvious  one  between 
the  present  case  and  one  in  which  a  vessel  already  on  her  voy- 
age and  in  transitu  departs  from  the  usual  route  by  reason  of 
obstructions   of  this    nature,  or    of  blockades,  etc.     In  such 
cases  the  master  must  act;  a  necessity  is  thrown  upon  him; 
and  if  he  is  governed  by  a  sound  discretion,  he  stands  justi- 
fied.   But  here  it  may  as  well  be  claimed  that  the  master  would 
be  justified  in  leaving  a  safe  port  during  the  existence  of  a 
violent  tempest,  or  in  the  face  of  blockading  or  embargo  re- 
strictions, because  it  might  be  uncertain  how  long  these  im- 
pediments would  be  in  the  way.     The  port  of  destination  in 
this  voyage  was  Norwich;  and  it  is  conceded  that  the  obstruc- 
tion caused  by  ice  to  the  navigation  of  the  river  Thames  usu- 
ally continues  several  days  longer  than  the  Sound  continues 
frozen.     The  master  knew,  therefore,  that  he  could  not  com- 
plete  his   voyage   earlier  in   consequence   of   the   course   he 
adopted."     In  that  case  the  carrier  was  held  liable  for  the 
property  lost.     This  question  often  arises  in  actions  against 
insurance  companies,  and  is  an  important  principle. 

§  499.  Often  duty  of  the  carrier  to  delay  or  deviate 

from  course, —  In  the  light  of  Avhat  has  been  said,  it  is  not  dif- 
ficult for  us  to  understand  that  there  may  be  cases  where  the 
courts  would  be  justified  in  holding  that  it  is  absolutely  the 
duty  of  the  common  carrier  to  delay  tiie  transportation  of 
the  goods,  or  even  to  deviate  from  the  usual  course,  if  to  leave 
the  port  and  proceed  upon  her  journey  tlie  vessel  must  neces- 
sarily encounter  a  dangerous  tempest  and  storm  which  wouki 

468 


OH.  VII.]      DAMAGE  OE  INJURY  FROM  DEVIATION  OK  DELAY.       [§  499, 

cause  her  loss  and  the  destruction  and  loss  of  her  cargo;  al- 
though the  tempest  and  storm  may  be  considered  to  be  the 
act  of  God,  the  carrier  would  not  be  excused  for  the  loss,  as 
we  have  already  seen.  In  such  case  it  is  his  bounden  duty  to 
remain  in  the  port  until  the  storm  has  passed.  If  it  is  cer- 
tain that  to  proceed  with  a  railroad  train  it  will  encounter  wash- 
outs and  freshets  and  dangers  which  cannot  be  overcome,  al- 
though they  may  be  the  direct  result  of  the  act  of  God,  still, 
to  unnecessarily  encounter  them  would  render  the  carrier  lia- 
ble, and  it  would  be  no  defense  to  say  that  these  calamities 
were  the  act  of  God.  In  such  cases  it  is  the  duty  of  the  car- 
rier to  delay  the  journey;  that  is  to  say,  he  is  not  only  excused 
for  the  dela}^  but  it  is  his  bounden  duty  to  delay.  And  so,  if 
to  proceed  wnth  the  vessel  upon  her  course  she  is  certain  to  be 
captured  by  the  blockade  force  of  the  enemy,  in  such  case  the 
master  is  confronted  with  a  necessity  demanding  the  change 
or  deviation  of  her  course;  and,  after  using  sound  discretion, 
good  judgment  and  reasonable  diligence,  he  will  not  be  held 
for  delay.  Indeed,  it  would  be  said  in  such  case  that  it  was 
his  duty  to  deviate  and  change  his  course;  and  if  he  did  not, 
and  with  knowledge  of  the  fact  that  to  proceed  upon  her 
course  he  would  be  captured  by  the  public  enemy,  and  he  did 
proceed  and  was  captured,  it  would  be  no  defense,  but  he 
would  be  liable  for  the  loss.^  It  seems,  however,  in  such  cases, 
that  it  is  the  duty  of  the  carrier,  if  he  can  do  so,  to  notify  the 
shipper  of  the  condition,  but  this  can  hardly  be  said  to  be  an 
essential  to  his  defense.  In  the  New  York  court  of  appeals, 
in  Johnson  v.  N.  Y.  Cent.  R.  Co.^  the  action  was  for  ninety-one 
bales  of  tow  addressed  to  the  consignee  in  New  York  and  de- 
livered to  the  carrier  at  Little  Falls  to  be  delivered  at  Alban}^ 
thence  to  be  forwarded  by  the  People's  Line  of  steamboats  to 
New  York.  On  its  arrival  at  Albany  it  was  offered  by  the 
proprietors  to  the  People's  Line,  who  declined  to  receive  it  on 
the  ground  that  they  were  prohibited  by  the  act  of  others 
from  transferring  freight  of  that  description.  The  tow  was 
then  shipped  by  the  defendant  on  a  freight-barge,  which  was 
in  good  condition,  running  from  Albany  to  New  York.  On 
the  passage  to  New  York  the  tow  was  lost  with  the  barge. 
The  court  say:  "There  is  a  class  of  cases  in  which  an  agent  is 

1  Crosby  v.  Fitch,  12  Conn.  410.        2  Johnson  v.  Railway  Co.,  33  N.  Y.  610. 

4(59 


§  500.]  CAEKIEES.  [PAET   V. 

justified  by  an  unexpected  emergency  in  deviating  from  his 
instructions  where  the  safety  of  the  property  requires  it.  In 
this  instance  no  such  emergency  arose."  The  court  held  the 
defendants  liable  for  the  loss  of  the  goods.^ 

§  500.  When  delay  and  deviation  on  aceonnt  of  strikes  or 
riots. —  Where  the  delay  in  the  transportation  of  the  goods  was 
caused  by  strikers  or  rioters,  or  persons  not  in  the  control  of 
the  carrier,  he  is  not  liable.  In  the  case  of  Geismer  v.  L.  S.  & 
M.  8.  B.  Co?  the  court  say :  "  A  railroad  carrier  stands  upon 
the  same  footing  as  other  carriers,  and  may  excuse  delay  in  the 
delivery  of  goods  by  accident  or  misfortune  not  inevitable  or 
produced  by  the  act  of  God.  All  that  can  be  required  of  it  in 
any  emergency  is,  that  it  shall  exercise  due  care  and  diligence 
to  guard  against  delay  and  to  forward  the  goods  to  their  des- 
tination, and  so  it  has  been  uniformly  decided.  In  the  absence 
of  special  contract  there  is  no  absolute  duty  resting  upon  a 
railroad  carrier  to  deliver  the  goods  intrusted  to  it  within 
what,  under  ordinary  circumstances,  would  be  a  reasonable 
time.  Not  only  storms  and  floods  and  other  natural  causes 
may  excuse  delay,  but  the  conduct  of  men  may  also  do  so.  An 
incendiary  may  burn  a  bridge,  a  mob  may  tear  up  the  track  or 
interpose  irresistible  force  or  overpowering  intimidation,  and 
the  only  duty  resting  upon  the  carrier,  not  otherwise  involved, 
is  to  use  reasonable  efforts  and  due  diligence  to  overcome  the 
obstacles  thus  interposed  and  to  forward  the  goods  to  their 
destination."  And,  as  touching  the  rule  of  law  that  the  car- 
rier is  liable  for  the  acts  of  his  servants,  which  has  been  urged 
in  cases  of  this  kind,  the  court  further  say:  "Itis  true  that  these 
men  have  been  in  the  employment  of  the  defendant.  But  they 
left  and  abandoned  that  employment.  They  ceased  to  be  in 
its  service  or  in  any  sense  its  agents,  for  whose  conduct  it  was 
responsible.  They  not  only  refused  to  obey  its  orders  or  to 
render  it  any  service,  but  they  wilfully  arrayed  themselves  in 
positive  hostility  against  it,  and  intimidated  and  defeated  the 
efforts  of  employees  who  were  willing  to  serve  it.  They  be- 
came a  mob  of  vicious  lawbreakers  to  be  dealt  with  by  the 
government,  whose  duty  it  was,  by  the  use  of  adequate  force, 

1  Maghee  v.  Camden  &  Amboy  R.        2  103  N.  Y.  563. 
Co.,  45  N.  Y.  514;  Davis  v.  Garrett,  6 
Bing.  716. 

470 


CH.  VII.]      DAMAGE  OE  INJURY  FKOM  DEVIATION  OR  DELAY.       [§  501. 

to  restore  order,  enforce  proper  respect  for  private  property 
and  private  rights  and  obedience  to  law.  If  they  had  burned 
down  bridges,  torn  up  tracks,  or  gone  into  passenger  cars  and 
assaulted  passengers,  upon  what  principle  could  it  be  held  that 
as  to  such  acts  they  were  the  employees  of  the  defendant  for 
whom  it  was  responsible?  If  they  had  sued  the  defendant  for 
wages  for  the  eleven  days  when  they  were  thus  engaged  in  block- 
ing its  business,  no  one  will  claim  that  they  could  have  recov- 
ered. It  matters  not,  if  it  be  true,  that  the  strike  was  conceived 
and  organized  while  the  strikers  were  in  the  employment  of  the 
defendant.  In  doing  that  they  were  not  in  its  service  or  seek- 
ing to  promote  its  interests  or  to  discharge  any  duty  they  owed 
it;  but  they  were  engaged  in  a  matter  entirely  outside  of  their 
employment  and  seeking  their  own  ends  and  not  the  interests 
of  the  defendant.  The  mischief  did  not  come  from  the  strike  — 
from  the  refusal  of  the  employees  to  work,  but  from  their  vio- 
lent and  unlawful  conduct  after  they  had  abandoned  the  serv- 
ice of  the  defendant."  ^ 

§  501.  May  discriminate  as  to  sliipping  perishable  goods. 
It  is  a  rule  of  the  common  law,  as  well  as  statutory,  in  most  of 
the  states,  that  the  common  carrier  must  not  discriminate  in 
favor  of  any  particular  shipper;  this  we  have  discussed  in  an- 
other chapter.  But  these  rules  have  yielded  to  certain  excep- 
tions founded  upon  the  sound  judgment  of  men  and  a  sense  of 
humanity.  For  example,  where  perishable  goods  are  received 
for  shipment  while  there  are  others  awaiting  shipment  which 
are  not  perishable,  the  carrier  not  having  sufficient  facilities 
for  sending  all  forward  may  discriminate  in  favor  of  perishable 
goods,  as  there  could  be  no  damage  of  any  consequence  by 
reason  of  delaying  goods  that  are  not  perishable,  while  to 
delay  the  perishable  freight  might  result  in  its  entire  loss. 
And  where  goods  are  delivered  to  the  carrier  for  the  relief 
of  the  sufferers  by  some  great  disaster  —  as,  for  example,  the 
Chicago  fire,  the  Johnstown  flood,  and  the  Texas  storm  suffer- 
ers,—  in  such  case  it  is  the  duty  of  the  carrier  to  forward  such 
goods  to  the  exclusion  of  goods  waiting  for  shipment  in  their 
warehouses  if  he  has  not  the  facilities  for  both,  and  he  will  be 

iPac.  &  C.  R.  Co.  V.  Hazen,  84  111.  R.  Co.,  6  Am.  &  Eng.  R.  Cases,  39; 
36;  Pac.  C.  W.  L.  R.  Co.  v.  Hallowell,  Railway  Co.  v.  Juntzer,  10  Bradw. 
65  Ind.  188;  Bennett  v.  L.  S.  &  M.  S.     (111.)  205. 

471 


§  502.] 


CARRIERS. 


[part 


excused  for  the  delay  of  the  goods  discriminated  against. 
This,  of  course,  is  founded  upon  public  policy;  it  is  the  saving 
of  the  lives  of  men,  and  a  sense  of  humanity  dictates  that  in 
such  case  relief  freight  should  be  forwarded  at  once.^ 

§502.  Duty  of  carrier  as  to  goods  after  disaster. —  From 
preceding  discussions  and  from  what  has  been  said  in  this 
chapter  upon  the  subject,  the  duty  of  the  carrier  as  to  goods 
that  have  been  injured  or  delayed  during  transportation  is  un- 
derstood. He  must  be  diligent  and  careful  in  looking  after 
them  and  do  all  that  he  can  reasonably  do  to  save  them  for  the 
owner.  Even  if  the  injury  resulted  without  fault  on  his  part, 
as  from  the  act  of  God,  or  a  cause  that  would  excuse  the  car- 


1  Mich.  Cent.  R.  Co.  v.  Burrows,  33 
Mich.  6.  "Giving  preference  to  re- 
lief goods  sent  to  the  suffei'ers  of  the 
great  Chicago  fire  was  not  such  a 
discrimination  against  shippers  of 
other  freight  as  to  make  carriers  lia- 
ble as  for  negligence  for  not  forward- 
ing freight  in  the  order  in  which  it 
was  received.  All  general  rules  must 
yield  to  a  great  public  necessity." 
The  court  say  at  page  11:  "It  was 
urged,  however,  that  it  was  the  duty 
of  the  company  to  send  forward 
freight  in  the  same  order  in  which  it 
was  received;  that  there  should 
have  been  no  discrimination  made, 
no  preference  given  between  the 
classes  of  freight  received  by  the 
company  for  transportation.  After 
the  fire  large  quantities  of  goods 
were  being  sent  forward  by  relief 
societies  from  all  parts  of  the  country 
for  the  purpose  of  both  preventing 
and  relieving  the  great  suffering  and 
distress  which  did  exist  and  other- 
wise would  have  existed  among  the 
people,  who  had  by  a  great  public 
calamity  suddenly  been  left  without 
proper  clothing  or  houses  to  shield 
and  protect  them  from  the  inclem- 
encies of  the  season,  or  sufficient 
provisions  to  prevent  many  of  them 
from  imminent  danger  of  starvation. 
So  urgent  was  the  demand  for  supplies 
that  relief  societies  sprung  up  all  over 


the  country.  The  people  promptly 
responded  to  their  calls,  and  the 
necessary  supplies  of  all  kinds  were 
sent  forward  in  such  abundance  that 
railroad  companies,  crippled  as  they 
were  by  the  fire,  found  it  difficult  to 
promptly  carry  and  dispose  of  their 
freights.  Relief  goods,  therefore, 
were  given  the  preference,  and  the 
companies  would  have  been  justly 
chargeable  with  public  condemna- 
tion had  they  refused  to  give  a  pref- 
erence to  and  carry  all  such  goods 
offered  for  transportation  under  the 
circumstances.  Although  the  com- 
pany had  suffered  v&ry  great  injury 
by  the  fire,  yet  it  was  doing  all  in 
its  power  to  repair  the  damage  as 
promptly  as  it  could,  and  at  the 
same  time  making  every  effort  to 
carry  forward  all  goods  received, 
making,  however,  a  just,  proper  and 
highly  commendable  discrimination 
in  favor  of  that  class  of  goods  which 
would  alleviate  the  suffering  and 
distressed."  Tierney  v.  N.  Y.  Cent. 
R.  Co.,  76  N.  Y.  305-315.  "  It  seems 
where  two  kinds  of  property,  one 
perishable  and  the  other  not.  are  de- 
livered to  a  carrier  at  the  same  lime 
by  diffei'ent  owners  for  transporta- 
tion, and  he  is  unable  to  carry  all,  he 
may,  and  it  is  his  duty  to  give  pref- 
erence to  that  which  is  perishable."' 


472 


OH.  VII.]       DAMAGE  OR  INJCKY  FROM  DEVIATION  OR  DELAY.       [§  502. 

rier,  he  is  not  excused  from  further  duty  in  respect  to  the  goods. 
He  must  use  reasonable  diligence  in  saving  all  that  can  be 
saved,  and  if  he  does  less  he  will  be  held  liable  for  the  result 
of  that  failure.  Some  discussion  has  been  had  as  to  what  that 
-ordinary  diligence  requires  upon  the  part  of  the  carrier.  If,  for 
example,  grain  that  is  being  shipped  by  a  steamboat  or  barge 
carrying  other  freight  should,  during  transit,  by  reason  of  a 
severe  storm,  and  without  the  fault  of  the  carrier,  become  dam- 
aged by  water,  is  it  the  duty  of  the  carrier  to  lay  up  in  port, 
unload  and  dry  the  wheat?  It  has  been  held  that  ordinary  dili- 
gence does  not  go  to  that  extent,  especially  w^hen  the  carrier  is 
loaded  with  other  freight.^  A  different  duty  would  be  laid 
upon  him,  however,  in  the  exercise  of  ordinary  diligence  if  he 
were  in  port  and  to  stay  for  some  time,  for  in  such  case  there 
would  be  no  unnecessary  detention  of  other  freight  and  his 
duty  would  be  clear.  Where  a  consignment  of  furs  became 
wet  during  transit,  it  was  held  that  it  was  the  duty  of  the  car- 
rier to  unpack  and  dry  thera,^  and  it  may  be  said  generally  that 
whatever  ought  to  be  done  must  be  done.  . 

1  Steamboat  Lynx  v.  King,  12  Mo.        2  Chouteaux  v.  Leech  Co.,  18  Pa. 
273.  St.  224. 

473 


CHAPTER  YIII. 


CONTRACTS  REGULATING  THE  TRANSPORTATION  OF  GOODS. 


503.  The  object  of  the  chapter. 

504.  Contracts     imposing    obliga- 

tions upon  the  carrier. 
If  the  contract  is  to  carry  by 
a  certain  route  or  in  a  cer- 
tain manner. 

By  a  certain  time. 

If    the    contract    is    to 

transport  by  water, it  cannot 
be  fulfilled  by  carrying  by 
rail. 

When  the  change,  deviation 
or  delay  from  the  stipula- 
tions in  the  contract  is  the 
fault  of  the  shipper. 

Contracts  limiting  the  liabil- 
ity of  the  carrier. 

Cannot  limit  liability  when 
the  loss  is  the  result  of  the 
negligence  of  the  carrier  or 
his  servants. 

Rule  in  different  states  as  to 
limitation  for  negligence. 

Limiting  liability  as  to 

amount. 

The  consideration  of  contracts 
limiting  liability. 


505. 


506. 
507. 


508. 


509. 


510. 


511. 


512. 


513. 


514  Option  to  the  shipper  to 

accept  contract  limiting  lia- 
bility. 

515.  Contract  must  be  reasonable^ 

fair  and  without  fraud. 

516.  The  contract,  how  made. 

517.  Contract  limiting  the  time  in 

which  to  present  claim  or 
commence  suit. 

518.  Contract     limiting     liability 

need  not  be  in  writing. 

519.  Construction  of  the  contract 

limiting  liability. 

520.  Contracts  implied  from 

notice. 

521.  Further  consideration. 

522.  General   notice   written 

or  printed  upon  the  receipt 
or  bill  of  lading. 

523.  Representations  of  the  shipper,^ 

fraudulent  or  otherwise 

524.  When  the  contract  limiting 

liability  inures  to  the  benefit 
of  the  connecting  carrier. 

525.  Limiting  liability  in  England^ 

especiallj'  by  notice. 

526.  The  result  of  this  act. 


§  503.  The  object  of  the  chapter. —  Thus  far,  in  discussing- 
the  liability  of  the  carrier,  we  have  confined  ourselves  almost 
entirely  to  the  implied  obligations  of  the  parties.  It  is  the 
object  of  this  chapter  to  present  the  liability  as  created  by 
express  or  special  contract,  or  by  contracts  that  have  the 
same  effect  as  to  rights  and  liabilities.  There  are  two  classes- 
of  these  contracts  that  are  important:  (1)  Contracts  imposing 
obligations  upon  the  carrier  not  required  by  implication  under 
the  ordinary  shipment  or  bill  of  lading;  and  (2)  contracts  which 
limit  the  liability  of  the  carrier. 

474 


CH.  YIII.]       CONTRACTS TKANSPOKTATION  OF  GOODS,       [§§504,505. 

§504.  (1)  Contracts  imposing:  obligations  upon  the  carrier. 

There  can  be  no  question  but  that  the  carrier  can,  by  contract, 
increase  his  liability,  and  whether  increased  or  not,  when  the 
contract  is  written,  the  stipulations  must  be  carried  out  by  the 
carrier,  and  for  failure  on  his  part  to  transport  and  deliver 
the  goods  as  stipulated  in  the  contract,  which  results  in  dam- 
age to  the  owner,  the  carrier  will  be  liable.  And  so,  if  by 
contract  he  has  agreed  to  carry  the  goods  to  their  destination 
by  a  particular  time,  or  by  a  certain  route,  nothing  but  a  strict 
compliance  with  the  terms  of  the  contract  will  shield  him  from 
liability  if  injury  or  loss  occurs.  And  where  the  owner  of  a, 
vessel  was  under  contract  to  deliver  coal  received  on  board  at 
Baltimore  to  the  defendants  in  Xew  Haven,  but  on  account  of 
the  ice  the  carrier  could  not  get  to  the  dock  but  arrived  in  the 
port  of  destination,  it  was  held  in  an  action  for  demurrage  for 
the  time  the  vessel  laid  in  port  after  her  arrival,  that  the  duty 
of  the  carrier  was,  under  his  contract,  to  land  the  cargo  upon 
the  dock,  and  that  he  would  not  be  excused  from  this  liability 
because  of  the  ice  that  prevented  him  from  landing.^  And  it 
may  be  said  that  though  prevented  from  fulfilling  the  contract 
by  the  act  of  God,  or  other  of  the  causes  that  will  excuse  the 
carrier  in  cases  where  there  is  no  special  contract,  still  he  will 
not  be  excused;  the  contract  must  be  fulfilled.  In  such  cases 
he  becomes,  indeed,  an  insurer  of  the  property.^  And  even 
wiiere  the  carrier  is  prevented  on  account  of  war,  it  has  been 
held  that  this  would  not  dispense  with  the  performance  of  his 
contract;  he  must  fulfill  the  stipulations  in  the  contract  as  he 
made  them.^ 

§  505.  If  the  contract  is  to  carry  by  a  certain  route  or  in 
a  certain  manner. —  So,  if  the  contract  is  to  carry  the  goods 
by  land  or  water,  or  by  some  certain  route,  they  must  be  so 
carried,  and  if  the  course  is  changed,  no  matter  for  what  rea- 
son, and  there  is  any  damage  from  delay,  or  injury  to  the 
property,  or  any  loss  of  property,  even  if  it  be  by  the  direct 
result  of  an  act  of  God,  the  carrier  is  liable.  His  deviation 
from  the  stipulations  in  the  contract  renders  him  an  insurer, 
even  against  loss  that  may  occur  by  act  of  God  or  the  public 

1  Hodgden  v.  New  York  &  N.  H.  2  Wilson  v.  Missouri  Pac.  R.  Co.,  74 
R.  Co.,  46  Conn.  277.  Mo.  364,  41  Am.  Rep.  318. 

3  Tlie  Harriman,  9  Wall.  161. 
475 


§  505.]  CAEEIEKS.  [part    V. 

enemy.  And  where  by  contract  the  carrier  agreed  to  forward 
certain  boxes  of  goods  for  plaintiffs  from  ISTew  York  to  Kew 
Orleans  by  a  certain  steamer,  the  Ocean  Bird,  and  after  receiv- 
ing the  goods  and  making  the  agreement  it  was  found  the 
•  steamer  was  not  running,  and  the  goods  for  that  reason  could 
not  be  shipped  by  it,  and  on  learning  this  defendant  forwarded 
the  goods  by  another  steamer,  which  was  lost  with  the  goods, 
it  was  held  that  the  carrier  was  liable  for  the  value  of  the 
goods;  that  the  fact  that  the  specified  vessel  was  withdrawn 
from  the  route  so  that  the  goods  could  not  be  shipped  by  her 
would  not  authorize  them  to  forward  "  by  any  other  special, 
customary  and  proper  mode  of  conveyance."  It  was  their 
duty  to  notify  the  owners  of  the  goods  and  receive  instruc- 
tions; forwarding  by  another  vessel,  being  unauthorized,  ren- 
dered them  responsible  for  the  consequences.^  The  court  say : 
"Assuming,  then,  that  the  receipt  was  properly  given,  it  was 
obligatory  on  the  defendants  to  forward  the  goods  to  New 
Orleans  by  the  steamer  designated  therein.  They  were  re- 
ceived for  that  and  for  no  other  purpose,  and  the  defendants 
had  no  right,  on  the  failure  of  the  Ocean  Bird  to  make  the 
contemplated  voyage,  to  send  them  '  by  any  other  usual,  cus- 

1  Goodrich  v.  Thompson,  44  N.  Y.  show  that  the  owner  had  concealed 
324,  338.  In  Maghee  v.  Camden  &  the  nature  and  value  of  the  pack- 
A.  R.  Co.,  45  N.  Y.  522,  the  court  say:  age,  and  it  was  claimed  that  the 
••  When  a  carrier  accepts  goods  to  be  concealment  was  a  fraud  upon  the 
carried  with  a  direction  on  the  part  carrier,  and  avoided  his  contract, 
of  the  owner  to  carry  them  in  a  par-  But  the  court  held  the  carrier  lia- 
ticular  way,  or  by  a  specified  route,  ble,  and  Bailey,  J.,  said:  If  this  de- 
he  is  bound  to  obey  such  direction;  fendant  had  sent  the  parcel  by  mail, 
and  if  he  attempts  to  perform  his  in  pursuance  of  his  contract,  I 
contract  in  a  manner  diflierent  from  should  have  been  of  opinion  that, 
his  undertaking,  he  becomes  an  in-  under  the  circumstances  of  the  case, 
surer,  and  cannot  avail  himself  of  he  would  not  have  been  liable  for 
any  exceptions  in  the  contract.  In  the  loss,  but  having  sent  it  by  a  dif- 
Steel  V.  Flagg,  5  Barn.  &  Aid.  342,  a  ferent  mode  of  conveyance,  I  am  of 
parcel  of  cashier's  notes  were  de-  opinion  that  he  is  liable."  Story  on 
livered  to  a  carrier,  to  be  carried  by  Bailments,  sec.  509,  states  the  rule, 
a  mail  coach,  and  were  sent  by  a  "if  the  carrier  deviates  from  the 
different  coach  and  were  lost;  no-  voyage,  he  is  responsible  for  all 
tice  had  been  given  to  the  carrier,  losses,  even  from  inevitable  casualty; 
of  which  the  owner  was  cognizant,  for,  under  such  circumstances,  tlie 
that  he  would  not  be  answerable  for  loss  is  traced  back  through  all  the 
the  value  of  any  article  to  an  amount  intermediate  causes  to  the  first  de- 
exceeding  five  pounds,  unless  it  was  parture  from  dutv." 
insured,  and  the  evidence  tended  to 

476 


en.  VIII.]  CONTRACTS TRANSPORTATION    OF    GOODS.  [§  506. 

tomary  and  proper  mode  of  conveyance,'  as  claimed  in  the 
second  ground  of  the  motion  for  the  dismissal  of  the  complaint. 
That  would  justify  a  control  over  property  which  was  never 
authorized.  A  specific  agreement  to  do  an  act  in  a  certain 
manner  is  not  satisfied  by  an  attempt  to  do  it  in  another,  and 
a  failure  to  accomplish  the  object.  There  was  no  unexpected 
emergenc}'  rendering  it  necessary  to  send  the  goods  by  the 
Crescent  City.  AVhen  it  was  ascertained  that  the  Ocean  Bird 
would  not  sail  for  New  Orleans,  and  that  therefore  the  boxes 
could  not  be  sent  by  her,  it  was  the  duty  of  the  defendants  tO' 
notify  the  plaintiffs  of  that  fact  and  await  their  instructions. 
The  forwarding  of  the  goods  by  another  steamer  than  that 
agreed  upon  without  the  assent  of  the  plaintiffs,  or  any  notice 
to  them  of  their  intention  so  to  forward  them,  was  clearly  not 
an  execution  of  the  agreement  the  defendants  entered  into, 
and  they  were  chargeable  with  the  consequences  of  the  unau- 
thorized act."" 

§  506,  By  a  certain  time. —  In  a  case  where  the  con- 
tract was  to  deliver  the  goods  to  a  certain  place  by  a  stated 
time,  which  gave  the  usual  time  for  the  trip,  the  carrier  will 
be  held  by  the  terms  of  the  contract,  and  such  obligation  will 
not  be  modified  hj  a  bill  of  lading  subsequently  handed  to  the 
shippers  clerk.  And  when  b}^  reason  of  the  failure  of  the  car- 
rier to  so  deliver  the  goods  the  shipper  lost  a  profitable  market, 
the  market  falling  between  the  time  the  goods  were  to  be  de- 
livered and  the  time  they  were  actually  delivered,  the  carrier 
will  be  held  for  the  damage  thus  suffered.* 

1  Rudell  et  al.  v.  Ogdensburg  country  is  mostly  done  by  corpora- 
Transit  Co.,  117  Mich.  5G8,  76  N.  W.  tious  which  act  through  agents,  wlio, 
381.  In  this  case  the  court  say:  "  De-  as  in  this  case,  frequently  solicit 
lays  sometimes  occur  both  on  land  business;  and,  when  the  contract  is 
and  water.  Many  cases  like  the  pres-  a  reasonable  one,  it  must  be  upheld, 
ent  and  that  of  the  theatrical  troupe  in  the  absence  of  notice  of  lack  of 
are  constantly  arising,  where  deliv-  authority.  It  is  urged  that  the  cus- 
ery  at  a  certain  time  is  essential,  tomary  way  of  carrying  on  the  busi- 
When  the  shipper  and  the  carrier  ness  of  a  common  carrier  is  by  is.su- 
agree,  through  its  agent,  upon  a  date  ing  bills  of  lading,  wliich  constitute 
of  delivery  at  destination  which  the  contract  between  the  parties, 
gives  the  usual  time  to  make  the  This  custom  is  not  conclusive  of  the 
trip,  such  contract  cannot  be  held  authority  of  the  agent,  or  of  the  rea- 
unusual  or  extraordinary,  and  is  sonableness  of  the  contracts  he  as- 
within  the  general  authority  of  the  sumes  to  make.  PlaintilTs  testified 
agent.    The  carrying  business  of  the  that  they  knew  nothing  of  a  bill  of 

477 


§  507.]  CAKKIEES.  [part   V. 

§  507.  If  the  contract  is  to  transport  by  water,  it  can- 
not be  fulfilled  by  carrying  by  rail. —  When  by  the  agree- 
ment of  the  parties  the  goods  were  to  be  forwarded  from  Xew 
York  to  Detroit  by  sail  on  the  lakes,  in  which  the  shipper 
agreed  to  risk  the  dangers  of  the  sea,^  the  court  say:  "  The  con- 
tract in  terms  is  equally  restrictive  as  to  the  mode  of  transpor- 
tation on  the  lake  as  it  is  in  the  price  per  hundred.  Trans- 
portation by  sail  is  one  mode  and  transportation  by  steam  is 
another  mode  of  transporting  goods  and  property.  Both  are 
common  modes  on  our  lakes,  and  are  as  clearly  distinct  and  as 
definitely  understood,  when  applied  to  the  commercial  business 
prosecuted  on  our  inland  seas,  as  upon  the  ocean;  and  with  this 
clear  and  well  known  distinction  before  us,  which  has  been 
recognized  for  many  years  throughout  the  world,  it  will  not  do 
to  say  that  an  unconditional  agreement  to  transport  goods  'by 
sail  on  the  lake '  is  not  restrictive  as  to  the  mode  of  carrying. 
.  .  .  When  the  carrier  in  error  sent  forward,  from  Oswego, 
the  goods  by  steam,  they  violated  their  own  express  stipulation 
to  transport  them  from  that  point  by  sail,  and  in  doing  so  they 
became  insurers  to  the  defendants  in  error  for  the  safe  delivery 
in  Detroit  of  every  article  of  the  property  This  is  a  well  es- 
tablished legal  principle,  founded  in  justice  and  equity,  and 
numerous  authorities  might  be  referred  to  in  support  of  it;  but 
such  reference  is  deemed  entirely  unnecessary,  as  the  principle 
must  be  well  understood,  it  being  an  elementary  principle  of 
law,  that  when  a  carrier  undertakes  to  carry  goods  in  a  par- 
ticular manner,  or  by  a  particular  route,  and  without  the  con- 
sent of  the  owner  transports  them  in  a  different  manner,  or  by 
a  different  route,  he  becomes  the  insurer  for  the  actual  delivery 
of  the  goods  at  the  place  of  destination.  The  plaintiffs  below, 
by  the  terms  of  the  contract,  took  upon  themselves  the  dangers 
of  the  sea,  upon  the  condition  that  they  were  transported  '  by 
sail  on  the  lake,'  and  upon  no  other  condition  did  they  assume 
that  risk.    And  if  they,  after  the  execution  and  delivery  of  the 

lading  in  this  case,  and  had  never  tract  was  made  before,  and  defend- 

seen  any  before  the  trial.     Defend-  ant  could  not  change  it  by  handing 

ant  introduced  a  bill  of  lading,  which  a  receipt  or  bill  of  lading  to  a  clerk." 
it  claims   was    given  to    plaintiff's        ^  Merrick  v.  Webster,  3  Mich.  268, 

clerk  at  the  time  of  or  soon  after  the  275. 
delivery  of  the  goods  to  it.    The  con- 

478 


I 


CH.  VIII.]      CONTKACTS  —  TEANSPOETATION   OF  GOODS.       [§§508,509. 

contract,  obtain  (as  asserted  on  the  argument)  an  insurance 
upon  their  goods  to  be  transported  '  by  sail  on  the  lake,'  thej 
could  not  have  recovered  upon  it.  The  goods  having  been  lost 
on  the  lake  without  any  negligence  or  fault  of  the  master  or 
hands  of  the  propeller,  could  have  made  no  difference;  they 
were  forwarded  by  a  different  mode  from  that  represented  by 
the  owners  to  their  insurers.  Nor  can  that  make  the  least  dif- 
ference in  the  liability  of  the  plaintiffs  in  error  under  the  con- 
tract for  the  transportation.  The  rule  of  law  is  well  settled, 
that  when  parties  have  deliberately  put  their  engagements 
into  writing,  without  any  uncertainty  as  to  the  object  or  ex- 
tent of  the  engagement,  it  is  a  legal  presumption,  which  has  al- 
ways been  held  conclusive,  that  the  whole  agreement,  as  well  as 
the  extent  and  manner  of  its  performance,  were  embodied  in 
the  instrument,  and  by  it  the  parties  are  bound.  All  testi- 
mony of  previous  conversations,  or  declarations  at  the  time  or 
after  the  execution  of  the  agreement,  are  rejected  upon  the 
ground  that  such  evidence  would  tend  to  substitute  a  new  and 
different  contract  between  the  parties,  to  the  injury  of  one  or 
the  other  of  them.  This  law  is  based  upon  sound  reason  and 
cannot  be  departed  from." 

§  508.  When  the  change,  deviation  or  delay  from  the 
stipulations  in  the  contract  is  the  fault  of  the  shipper. — 
The  shipper  as  well  as  the  carrier  will  be  held  to  any  stipula- 
tions or  conditions  he  is  to  fulfill  or  keep  in  the  agreement. 
Often  the  shipment  depends  upon  some  duty  to  be  performed 
by  him;  as,  for  example,  upon  the  goods  being  delivered  in 
time  for  loading,  or  upon  their  being  properly  packed,  or  in 
safe  condition  for  shipment,  the  condition  not  being  apparent. 
Whenever  the  shipper's  dereliction  or  misconduct  is  the  direct 
cause  of  the  failure  on  the  part  of  the  carrier  to  keep  and  per- 
form the  stipulations  he  has  entered  into,  then,  even  though 
the  contract  be  special  or  express,  the  carrier  will  be  excused, 
for  in  such  case  the  failure  of  performance  of  the  contract  is 
not  his  fault,  but  the  fault  of  the  shipper.^ 

§  509.  (3)  Contracts  limiting  the  liability  of  the  carrier. 
The  discussion  of  this  question  seems  to  have  resolved  itself 
into  two  subdivisions:  (1)  special  or  express  contracts,  and 
(2)  contracts  implied  from  notice. 

*  Hutch,  on  Car.,  sec.  319a,-  Fowler  v.  Liverpool,  etc.  Steam  Co.,  87  N.  Y.  190. 

479 


§  509.]  CAEKIEES.  [PAKT   V. 

(1)  As  to  the  first  subdivision  there  is  not  much  difficulty, 
the  courts  holding  with  great  unanimity  that  the  carrier  may 
by  express  contract  limit  his  extraordinary  liability ;  and  this, 
with  the  exception  of  a  few  of  the  states  that  have  by  statute 
or  constitutional  provisions  prohibited  such  limitation,  seems 
to  be  the  general  holding  in  the  states  and  in  England,  The 
question  was  before  the  supreme  court  of  the  United  States  in 
New  Jersey  Steam  TranspoHattoji  Co.  v.  Merchants'  Bank} 
where  it  was  fully  discussed  by  Mr.  Justice  jSTelson,  who  deliv- 
ered the  opinion  of  the  court.  The  court  say:  "The  general 
liability  of  the  carrier,  independently  of  any  special  agree- 
ment, is  familiar.  He  is  chargeable  as  an  insurer  of  the  goods 
and  accountable  for  any  damage  or  loss  that  may  happen  to 
them  in  the  course  of  the  conveyance,  unless  arising  from  in- 
evitable accident;  in  other  words,  the  act  of  God  or  the  public 
enemy.  The  liability  of  the  respondents,  therefore,  would  be 
undoubted  were  it  not  for  the  special  agreement  under  which 
the  goods  were  shipped.  The  question  is:  To  what  extent  has 
this  agreement  qualified  the  common-law  liability  ?  »  .  .  As 
the  extraordinary  duties  annexed  to  his  employment  concern 
only,  in  the  particular  instance,  the  parties  to  the  transaction, 
involving  simply  rights  of  property,  the  safe  custody  and  de- 
livery of  the  goods,  we  are  unable  to  perceive  any  well-founded 
objection  to  the  restriction,  or  any  stronger  reasons  forbidding 
it  than  exist  in  the  case  of  any  other  insurer  of  goods,  to  which 
his  obligation  is  analogous,  and  which  depends  altogether  upon 
the  contract  between  the  parties.  The  owner,  by  entering  into 
the  contract,  virtually  agrees  that,  in  respect  to  the  particular 
transaction,  the  carrier  is  not  to  be  regarded  as  in  the  exercise 
of  his  public  employment,  but  as  a  private  person  who  incurs 
no  responsibility  beyond  that  of  an  ordinary  bailee  for  hire, 
and  answerable  only  for  misconduct  or  negligence.  The  right 
thus  to  restrict  the  obli":ation  is  admitted  in  a  large  class  of 
cases  founded  on  bills  of  lading  and  charter  parties,  where  the 
exception  to  the  common-law  liability  (other  than  that  of  in- 
evitable accident)  has  been,  from  time  to  time,  enlarged  and 
the  risk  diminished  by  the  express  stipulation  of  the  parties. 
The  right  of  the  carrier  thus  to  limit  his  liability  in  the  ship- 
ment of  goods  has,  we  think,  never  been  doubted.    But  admit- 

1 6  How.  (U.  S.)  344 
480 


CH.  VIII.]  CONTKACTS TRANSPORTATION    OF    GOODS.  [§  509. 

ting  the  right  thus  to  restrict  his  obligation,  it  by  no  means 
follows  that  be  can  do  so  by  any  act  of  his  own.  He  is  in  the 
exercise  of  a  sort  of  public  office  and  has  public  duties  to  per- 
form, from  which  he  should  not  be  permitted  to  exonerate 
himself  without  the  assent  of  the  parties  concerned.  And  this 
is  not  to  be  implied  or  inferred  from  a  general  notice  to  the 
public,  limiting  his  obligation,  which  may  or  may  not  be  as- 
sented to.  He  is  bound  to  receive  and  carry  all  the  goods  of- 
fered for  transportation,  subject  to  all  the  responsibilities  in- 
cident to  his  employment,  and  is  liable  to  an  action  in  case  of 
refusal.  And  we  agree  with  the  court  in  the  case  of  Ilollhier 
V.  JVowle?i,  that,  if  any  implication  is  to  be  indulged  from  the 
delivery  of  the  goods  under  the  general  notice,  it  is  as  strong 
that  the  owner  intended  to  insist  upon  his  rights,  and  the  duties 
of  the  carrier,  as  it  is  that  he  assented  to  their  qualification." 
A  later  and  a  leading  case  from  the  supreme  court  of  the  United 
States  is  Railroad  Co.  v.  Lockwood^  where  the  question  was 
discussed  by  Mr.  Justice  Bradley,  who,  rendering  the  opinion 
of  the  court,  said:  ''As  the  duties  and  responsibilities  of  public 
carriers  were  prescribed  by  public  policy,  it  has  been  seriously 
doubted  whether  the  courts  did  wisely  in  allowing  that  policy 
to  be  departed  from  without  legislative  interference,  by  which 
needed  modifications  could  have  been  introduced  into  the  law. 
But  the  great  hardship  on  the  carrier  in  certain  special  cases, 
where  goods  of  great  value  or  subject  to  extra  risk  were  de- 
livered to  him  without  notice  of  their  character,  and  where 
losses  happened  by  sheer  accident  without  any  possibility  of 
fraud  or  collusion  on  his  part,  such  as  by  collisions  at  sea,  ac- 
cidental fire,  etc.,  led  to  a  relaxation  of  the  rule  to  the  extent 
of  authorizing  certain  exemptions  from  liability  in  such  cases 
to  be  provided  for,  either  by  public  notice  brought  home  to  the 
owners  of  the  goods,  op  by  inserting  exemptions  from  liability 
in  the  bill  of  lading,  or  other  contract  of  carriage.  A  modifi- 
cation of  the  strict  rule  of  responsibility,  exempting  the  car- 
rier from  liability  for  accidental  losses,  where  it  can  be  safely 
done,  enables  the  carrying  interest  to  reduce  its  rates  of  com- 
pensation; thus  proportionally  relieving  the  transportation  of 
produce  and  merchandise  from  some  of  the  burden  with  which 
it  is  loaded."     The  courts  of  Xcw  York  for  a  long  time  were 

1 17  Wall.  357. 
31  481  ' 


[§   510.  CARRIERS.  [part    V. 

not  in  harmony  with  this  rule  as  laid  clown  by  the  supreme  court 
of  the  United  States  and  the  supreme  courts  of  the  different 
states.  The  'New  York  courts  contended  that  the  common-law 
liability  had  its  origin  in  public  policy,  and  a  limitation  of  lia- 
bility therefore  affected  the  public  and  not  alone  the  parties,  and 
for  this  reason  could  not  be  altered  or  set  aside  by  an  agree- 
ment of  the  parties.  But  that  state  soon  fell  in  line  with  the 
other  states  and  the  United  States  court,  holding  to  the  gen- 
eral doctrine  in  this  country,  adopted  by  nearly  all  of  the  courts 
of  the  Union  where  not  prohibited  by  statute  or  constitution, 
namely,  that  the  carrier  may  by  special  contract  limit  his  lia- 
bility for  any  losses;  and  seems  to  have  gone  further  and  held 
that  the  contract  may  excuse  negligence.^ 

§  510.  Cannot  limit  liability  when  the  loss  is  the  result 
of  the  negligence  of  the  carrier  or  his  servants. —  While  the 
carrier  may  relieve  himself  of  the  rigor  of  the  common-law 
liability  holding  him  as  an  insurer  except  in  cases  where  the 
loss  or  injury  is  the  direct  result  of  the  act  of  God  or  the  pub- 
lic enemy,  he  will  not  be  permitted  to  so  limit  his  common- 
law  liability  when  the  loss  or  injury  was  the  result  of  his  own 
neo'lio'ence  or  that  of  his  servants.  To  allow  such  a  limitation 
would  be  contrary  to  public  policy,  and  would  permit  the  car- 
rier to  stipulate  for  exemptions  from  the  effects  of  the  negli- 
gence of  himself  or  his  servants.^    And  where  there  was  a 

1  American  Traus.  Co.  v.  Moore,  5  Co.  v.  Peyton,  106  111.  537;  McCoy  v. 
Mich.  368;  McMillan  v.  Michigan  S.  Keokuk  R.  Co.,  44  Iowa,  424;  Willis 
&  N.  I.  R.  Co.,  16  Mich.  79:  Kimbal  v.  v.  Grand  Trunk  R.  Co.,  62  Me.  488; 
Railroad  Co.,  26  Vt.  247;  Boorman  v.  Jacobus  v.  St.  Paul  R.  Co.,  20  Minn. 
Express  Co.,  21  Wis.  154;  Hoadly  v.  125;  Hall  v.  Cheney,  36  N.  H.  26; 
Northern  Trans.  Co..  115  Mass.  .304.  Ashmore  v.  Pennsylvania  Steam 
It  was  assumed  by  both  parties  as  Towing  Co.,  28  N.  J.  L.  180;  Brown  t. 
now  settled  that  a  common  carrier  Adams  Exp.  Co.,  15  W.  Va.  812;  Kim- 
may,  by  special  contract,  avoid  or  ball  v.  Rutland,  etc.  R.  Co.,  26  Vt.  247; 
limit  his  liability  at  common  law  as  Wescott  v.  Fargo,  63  Barb.  343;  61 
an  insurer  of  property  intrusted  to  N.  Y.  542;  Evansville  R.  Co.  v.  Young, 
him  against  loss  or  damage  by  fire  28  Ind.  516;  Bartlett  v.  Pacific,  etc. 
occurring  without  his  fault.  Grace  Co.,  94  Ind.  281;  Camp  v.  Steamboat 
v.  Adams,  100  Mass.  505;  Illinois  Co.,  43  Conn.  833;  Rice  v.  Railroad 
Cent.  R.  Co.  v.  Morrison,  19  111.  136;  Co.,  63  Mo.  314;  Gaines  v.  Union 
American  Exp.  Co.  v.  Sohier,  55  111.  Trans.  Co.,  28  Ohio  St.  418. 
140;  Perry  V.Thompson,  98  Mass.  249;  2  Hutch,  on  Car.,  sec.  260;  Liver- 
Welch  v.  Boston  R.  Co.,  41  Conn.  333;  pool,  etc.  Co.  v.  Phoenix  Ins.  Co.,  129 
Black  V.  Wabash,  etc.  R.  Co.,  Ill  111.  U.  S.  397. 
351,  53  Am.  Rep.  628;  Wabash,  etc. 

483 


CH.  VIII.]  CONTRACTS TRANSPORTATION    OF    GOODS.  [§  510. 

stipulation  in  a  bill  of  lading  tliat  the  carrier  should  not  be  lia- 
ble for  loss  or  damage  to  the  goods  by  fire,  it  was  held  that 
this  would  not  exempt  the  carrier  from  liability  where  the 
goods  were  destroyed  by  fire  through  its  negligence  or  the  neg- 
ligence of  its  employees.^  And  in  Clncago  &  N.  TF.  R.  Co.  v. 
Chapman-  the  court  say:  "The  carrier  may  limit  its  liability 
against  loss  by  fire  without  his  fault,  and  the  liability  may  thus 
be  limited  as  an  insurer  and  against  other  losses  not  attribu- 
table to  its  negligence  or  that  of  its  servants,  and  may  require 
the  value  of  goods  offered  for  transportation  to  be  fixed  by  the 
shipper  to  protect  itself  against  fraud  in  case  of  loss."  The 
courts  of  this  state  have  never  held  that  the  carrier  may  limit  or 
restrict  its  liability  for  loss  or  damage  resulting  from  its  own 
gross  negligence,  or  the  gross  negligence  of  its  servants.  On 
the  contrary,  it  has  been  repeatedly  and  uniformly  held  that 
it  cannot  do  so,  even  by  express  contract  with  the  shipper. 
The  question  first  arose  in  111.  Cent.  R.  Co.  v.  Morrison,^  and 
it  was  there  said :  '  We  think  the  rule  a  good  one  as  established 
in  England  and  in  this  country,  that  railroad  companies  have  a 
right  to  restrict  their  liabilities  as  common  carriers  by  such 
contracts  as  may  be  agreed  upon  specially,  they  still  remainino- 
liable  for  gross  negligence  or  wilful  misfeasance,  against  which 
good  morals  and  public  policy  forbid  that  they  should  be  per- 
mitted to  stipulate.'  "  And  so  it  would  seem  to  be  settled  b}'- 
the  great  weight  of  authority  that  a  carrier  cannot  stipulate 
for  exemption  from  liabilities  which  arise  from  the  neo-lio-ence 
of  himself  or  his  servants,  because  such  a  stipulation  is  for- 
bidden by  public  policy,  and  that  this  is  the  rule  even  in  case 
of  express  contract.^ 

Some  of  the  courts,  however,  have  gone  so  far  as  to  hold 

1  Liverpool  &  L.  &  G.  Ins.  Co.  v.    362;  Terre  Haute  &  I.  R.  Co.  v.  Sher- 


McNeil,  89  Fed.  131,  32  C.  C.  A.  173 
Cox  V.  Railroad  Co.,  170  Mass.  129 
Schaller  v.  Railway  Co.,  97  Wis.  31 


wood,  132  Ind.  129,  17  L.  R.  A.  339. 
^  133  III.  96,  8  L.  R.  A.  o08. 
3  19  111.  136;  Oppenheimer  v.  U.  S. 


Pierce  v.  S.  Pac.  R.  Co.,  120  Cal.  156,  Exp.  Co.,  69  111.  62;  Western,  etc.  R. 

40  L.  R.  A.  350,  354.    "  A  carrier  is  not  Co.  v.  Exposition  Cotton  Mills,  81  Ga. 

relieved  from  responsibility  if  he  has  522,  2  L.  R.  A.  287;  U.  S.  Exp.  Co.  v. 

been  guilty  of  negligence."   Railway  Council,  84  III.  App.  491. 

Co.  V.  Pratt.  22  Wall.  123;  Hutch,  on        ■*  Kansas,  etc.  Ry.  Co.  v.  Simpson, 

Car.,  sec.  260;  Atchison,  T.  &  S.  F.  R.  30  Kan.  645. 

€0.  V.  Temple,  47  Kan.  74,  13  L.  R.  A. 

483 


^  511.]  CARRIERS.  [part    V. 

that  the  comraon-law  liabilit}^  of  a  common  carrier  may  be 
limited  even  to  the  extent  of  excusing  the  carrier  for  negli- 
gence by  express  contract. 

The  supreme  court,  in  Hart  v.  Pa.  R.  Co.^  say:  "The  lim- 
itation as  to  value  has  no  tendency  to  exempt  from  liability 
for  negligence.  It  does  not  induce  want  of  care.  It  exacts 
from  the  carrier  the  measure  of  care  due  to  the  value  agreed 
on.  The  carrier  is  bound  to  respond  in  that  value  for  negli 
gence.  The  compensation  for  carriage  is  based  on  that  value. 
The  shipper  is  estopped  from  saying  that  the  value  is  greater. 
The  articles  have  no  greater  value,  for  the  purposes  of  the  con- 
tract for  transportation,  between  the  parties  to  that  contract. 
The  carrier  must  respond  for  negligence  up  to  that  value.  It 
is  just  and  reasonable  that  such  a  contract,  fairly  entered  into, 
and  where  there  is  no  deceit  practiced  on  the  shipper,  should 
be  upheld.     There  is  no  violation  of  public  policy." 

From  this  it  would  seem  that  the  court  in  this  case,  in  lim- 
iting the  recovery  to  the  amount  of  the  stipulated  value,  which 
was  less  than  the  real  value  of  the  property,  and  the  loss  of 
the  property  really  occurring  from  the  negligence  of  the  de- 
fendants, in  a  measure  upheld  the  doctrine  that  the  carrier 
might  limit  liability  as  to  negligence. 

§  511.  Rule  in  different  states  as  to  limitation  for  negli- 
gence.—  It  would  appear,  however,  from  an  examination  of 
the  cases  in  different  states,  that  there  is  some  conflict  in  the 
holdings  of  the  courts  upon  the  subject  of  contracts  limiting 
the  liability  of  the  carrier  for  negligence  of  himself  or  servants. 
We  shall  not  attempt  to  give  the  different  rules  that  have 
been  adopted  by  the  several  states  of  the  Union;  we  can  only 
mention  some  of  the  more  prominent  cases. 

In  Illinois  the  rule  seems  to  be  that  the  carrier  may  contract 
for  exemptions  from  liability  when  the  loss  or  injury  results 
from  the  negligence  of  the  carrier  or  his  servants,  but  not 
when  the  negligence  is  gross;-  while  in  ]^ew  York  the  courts 
have  gone  so  far  as  to  hold  that  so  far  as  making  a  contract  for 
limiting  liability,  it  is  simply  the  business  of  the  carrier  and  the 
shipper,  in  which  the  public  have  no  particular  concern,  and 
if  the  carrier  freely  and  voluntarily  makes  a  contract  ex- 
empting the  Gafi-ior  from  all  liability  for  a  valuable  considera- 

1 112  U.  S.  340.    ■   '''  2  Wabasli,  etc.  R.  Co.  v.  Brown,  152  111.  484. 

484 


CH.  VIII.]  CONTRACTS TRANSPORTATION    OF    GOODS.  [§512. 

tion,  and  without  fault  or  deception,  the  contract  being  full}'' 
understood  by  the  parties,  such  a  contract  will  be  sustained. 

Wells,  J.,  in  discussing  this  question  in  Parsons  v.  Monteith} 
said:  "If  1  have  goods  to  transport  and  the  common  carrier 
tells  me  he  will  carry  them  for  a  particular  price,  without  in- 
curring the  risk  of  loss  or  damage  by  inevitable  accident,  but 
that  if  he  takes  such  risk  he  must  add  a  percentage  to  the  price 
of  transportation,  I  really  cannot  see  what  the  public  have  to 
do  with  our  negotiations,  nor  why  we  should  not  be  permitted 
to  make  a  valid  contract  with  such  conditions  and  stipulations 
as  we  choose." 

There  is  also  conflict  of  opinion  as  to  limiting  liability  to  the 
payment  of  a  less  amount  than  the  valuation  of  the  property 
in  case  of  loss,  some  of  the  courts  holding  that  the  carrier  may 
limit  his  liability  to  a  less  amount  provided  the  shipper  as- 
sents to  the  limitation,  and  that  that  assent  is  presumed  on  ac- 
cepting the  bill  of  lading,  or  receipt  which  contains  the  limita- 
tion, while  other  courts  have  held  that,  where  the  loss  is  from 
the  negligence  of  the  carrier,  the  shipper  may  recover  the  full 
value  of  the  property  destroyed. 

§  512. Limiting  liability  as  to  amount. —  The  liability 

of  the  common  carrier  at  the  common  law  as  an  insurer  of  the 
goods  of  the  shipper  creates  a  privilege  in  the  shipper  amount- 
ing to  an  interest  which,  for  a  consideration,  he  can  no  doubt 
waive,  and  the  law  permitting  limitation  of  liability  has  its 
foundation  rather  in  the  idea  of  waiver  of  privilege  than  in  the 
theory  of  special  contract  between  the  parties.  Upon  the 
theory  that  the  limitation  is  a  waiver  of  a  legal  right,  it  would 
seem  to  follow  that  for  a  valuable  consideration  the  shipper 
could  limit  the  amount  to  be  recovered  for  the  property  in 
case  of  loss.  We  are  aware  that  there  are  writers  who  have 
laid  down  the  doctrine  that  these  contracts  of  limitation  ought 
not  to  be  sanctioned,  for  the  reason  that  if  the  carrier  has  the 
privilege  to  limit  the  value  to  be  recovered,  in  case  of  loss,  to 
a  less  amount  tlian  the  property  is  worth,  upon  the  same  course 
of  reasoning  the  entire  liability  might  be  waived ;  that  is  to 

1 13  Barb.  (N.Y.)  353.  See  also  com-  Eng.  Ency.  of  Law  (2d  ed.),  313;  also 
merits  of  Allan,  J.,  in  Smith  v.  New  Ballou  v.  Earle,  17  R.  I.  441,  14  L. 
York  Cent.  R.  Co.,  24  N.  Y.  222.  No-  R.  A.  433,  and  notes  for  discussion  in 
tice  compilation  of  cases  in  5  Am.  &     holdings  for  different  states. 

485 


§  513.]  OAKKIEES.  [part   V. 

say,  if  it  could  be  limited  to  a  recovery  of  four-fifths  of  its 
value  it  might  be  limited  to  a  recovery  of  one-half;  and  if  to 
one-half,  then  to  nine-tenths;  and  if  to  nine-tenths,  to  the  whole 
amount  of  the  value  of  the  property.  It  may  be  said,  however, 
on  the  other  hand,  that  the  right  to  recover  from  the  shipper 
as  an  insurer  of  the  property,  being  an  interest  owned  and 
controlled  b}^  the  shipper  and  of  value  to  him,  may  be  disposed 
of,  as  any  other  interest,  for  a  valuable  consideration  agreed 
upon  between  the  parties.  It  is  conceded,  of  course,  that  for 
negligence  the  carrier  is  liable.  That  question  is  involved  in 
the  limitation  even  by  express  contract.  It  will  also  be  re- 
membered that  the  rules  of  construction  that  are  adopted  gov- 
erning these  contracts  are  favorable  to  the  shipper.  In  Judson 
V.  Western  B.  Co}  the  court  say :  "  To  this  extent,  the  doctrine 
that  a  carrier  may  limit  or  modify  his  liability  seems  to  be 
most  just  and  reasonable.  Inasmuch  as  the  rule  of  law  which 
holds  the  carrier  to  the  responsibility  of  an  insurer,  except  in 
certain  special  cases,  is  founded  in  a  policy  which  is  designed 
solely  for  the  security  and  benefit  of  the  owner  of  the  goods, 
there  can  be  no  sufiicient  reason  for  regarding  the  rule  as  ab- 
solutely  inflexible  or  irrepealable,  when  the  party  in  whose 
favor  it  will  operate,  directly  or  by  necessary  implication,  con- 
sents to  waive  it,  or  agrees  to  an  essential  modification  of  his 
own  rights  under  it."'^  And  so  it  may  be  said  that  according 
to  the  great  weight  of  modern  authority  in  this  country,  a 
valid  contract  limiting  the  liability  of  the  carrier  to  a  certain 
agreed  amount  or  valuation  of  the  property  carried  may  be 
made  where  it  is  just  and  reasonable  in  its  terms,  and  where 
the  consideration  is  a  reduced  rate  of  freight.^ 

§  513.  The  consideration  of  contracts  limiting  liability. 
The  consideration  supporting  the  contract  limiting  the  liabil- 
ity of  the  common  carrier  is  not  at  all  times  clear,  and  there 

1 6  Allen  (Mass.),  486,  490.  Tns.  Co.  v.  Erie  &  W.  Trans.  Co.,  117 

2  Fay  V.  Steamer  New  World,  1  Cal.  U.  S.  314. 

348;  Lawrence  v.  N.  Y.  B.  &  P.  Co.,  3  Richmond,'  etc.  R.  Co.  v.  Payne, 

36  Conn.  63;  Chicago,  R.  I.  &  P.  R.  86  Va.  481,  6  L,  R  A.  849:  Railway 

Co.  V.  Harman,  17  111.  App.  640;  Bel-  Co.  v.  Manchester  Mills,  88  Tenn.  653; 

ger  V.  Dinsmore,  51  N.  Y.  166.     And  Brown  v.  Cunard  S.  S.  Co.,  147  Mass. 

a  stipulation  that  the  value  of  the  58;    Squire  v.   Western    Union   Tel. 

goods  shall  be  estimated  at  the  place  Co.,  98  Mass.  237;  Steers  v.  Liverpool, 

of  shipment  held  valid  in  Phoenix  etc.  Co.,  57  N.  Y.  1. 

486 


en.  VIII.]  CONTRACTS TEANSPOETATION    OF    GOODS.  [§  513. 

has  been  more  or  less  discussion  upon  the  subject  and  not 
the  utmost  harmony  among  authors  and  courts.  On  the  one 
hand  it  is  contended  by  some  writers,  and  they  are  sup- 
ported by  the  decisions  of  some  of  the  courts,  that  "the  parties 
beino^  left  free  to  make  their  own  contract,  and  having:  asreed 
that  in  consideration  of  the  payment  of  a  certain  price  by  one, 
certain  services,  upon  stipulated  terms  as  to  responsibilit}', 
shall  be  performed  by  the  other,  neither  can  allege  that  as  to 
him  there  was  no  consideration.  Such  is  the  general  rule  as 
to  contracts,  and  no  reason  is  seen  why  it  should  not  apply  to 
those  between  carriers  and  their  ^employers,  so  long  as  they 
are  permitted  to  make  their  own  terms."  This  is  the  language 
of  Hutchinson  on  Carriers,^  quoting  from  the  opinion  of  the 
court  in  York  Co.  v.  Central  RailuKiy  Co.:'''  "There  is  no  evi- 
dence that  a  consideration  was  not  given  for  the  stipulation. 
The  company  probably  had  rates  of  charges  proportioned  to 
the  risk  they  assumed  from  the  nature  of  the  goods  carried, 
and  the  exception  of  the  losses  by  fire  must  necessarily  have 
affected  the  compensation  demanded.  Be  this  as  it  may,  the 
consideration  expressed  was  sufficient  to  support  the  entire 
contract  made." 

On  the  other  hand,  there  is  a  line  of  cases  holding  that  there 
must  be  some  consideration  moving  between  the  parties  sup- 
porting the  particular  stipulation  limiting  the  liability.  We 
think  that  the  settled  rule  of  law,  gleaned  from  all  of  the  au- 
thorities, and  which  the  courts  in  their  later  decisions  seem  to 
bear  out,  is  this:  If  the  contract  is  not  objected  to,  but  accepted 
by  the  shipper,  the  courts  will  presume  that  there  was  a  valid 
consideration  for  the  stipulations  limiting  the  liability ;  but  if 
the  shipper  refuses  to  accept  the  contract  for  the  reason  that 
there  is  no  consideration,  then  the  consideration  is  a  subject  of 
proof,  and  this  presumption  may  be  overcome  the  same  as 
every  other  mere  presumption.  And  if  the  proof,  when  the 
consideration  is  attacked,  shows  that  there  was  no  real  consid- 
eration for  the  stipulations  limiting  the  liabilit}'',  then  in  that 
case  the  contract  in  that  respect  must  fail. 

The  delivery  of  freiglit  for  carriage  and  the  payment  of  the 
rate  to  the  carrier  is  no  doubt  sufficient  to  support  the  con- 
tract for  carriage,  but  the  contract  under  discussion  is  more 

1  Hutchinson  on  Carriers,  sec.  278.  2  3  Wall.  107. 

487 


§  513.] 


CAEEIEES. 


[part  V. 


than  that:  it  is  another  and  distinct  undertaking;  it  is  the 
giving  up  or  the  waiver  of  a  riglit  which  the  shipper  undoubt- 
edly has,  namely,  that  he  can  insist  upon  the  carrier  receiving 
and  transporting  his  freight  over  his  own  line  as  an  insurer 
without  limiting  his  common-law  liability  when  not  regulated 
by  statute.  ISTow,  for  the  waiver  of  this  privilege  it  would 
seem  there  must  be  a  consideration.  That  consideration  may 
be  a  reduction  of  freight  rates,  or  assuming  duties  of  forward- 
ing the  goods  beyond  the  carrier's  own  line,  or  the  offering  of 
any  other  benefit  which  he  is  not  legally  bound  to  bestow. 
But,  in  our  judgment,  there  must  be  some  distinct,  traceable 
consideration  beyond  the  mere  payment  of  the  usual  freight 
rates  charged  to  all  shippers. 

It  has  also  been  held  "  that  if  the  special  contract  recites 
that  in  consideration  of  reduced  rates  the  shipper  consents  to 
a  limitation  of  the  carrier's  liability,  and  it  is  shown  that  no 
reduced  rates  were  in  fact  allowed  the  shipper,  the  limitation 
is  invalid  as  beino;  without  consideration."  ^ 


182  Tex.  608;  Gulf,  etc.  R.  Co.  v. 
Wright,  1  Tex.  Civ.  App.  403;  San 
Antonio,  etc.  R.  Co.  v.  Barnett,  12 
Tex.  Civ.  App.  321;  Duvenick  v.  Mo. 
Pac.  R.  Co.,  57  Mo.  App.  550;  South- 
ard V.  Minneapolis  R.  Co.,  60  Minn. 
382;  Mich.  Cent.  R.  Co.  v.  Hale,  6 
Mich.  243.  The  supreme  court  of 
Arkansas,  in  the  case  of  Little  Rock, 
etc.  Co.  V.  Cravens,  57  Ark.  1 12,  liave 
discussed  this  question  very  thor- 
oughly. In  that  case  the  plaintiff 
sued  to  recover  the  value  of  cotton 
that  was  burned  without  fault  of 
the  defendants  while  they  held  it  for 
shipment.  "  The  defense  was  that 
the  company  were  exempt  from  lia- 
bility by  the  terms  of  the  bill  of 
lading  under  which  they  received 
tlie  cotton.  It  was  alleged  and  ad- 
mitted that  the  carrier  company  op- 
erated a  line  of  road  from  the  point 
where  the  cotton  was  received  to 
the  several  points  of  consignment, 
and  that  the  cotton  was  received 
under  bills  of  lading  containing  pro- 
visions to  the  effect  that  they  should 


not  be  liable  except  for  losses  occa- 
sioned by  their  negligence.  But  it 
was  alleged  that  these  provisions 
were  void,  for  the  reason  that  they 
were  without  consideration,  unfair, 
unjust  and  unreasonable.  To  main- 
tain this  contention  the  plaintiff 
proved  that  the  railroad  company 
fixed  and  published  a  uniform  rate 
for  carrying  cotton  between  the 
points  in  question,  and  that  his  ship- 
ments were  made  according  to  this 
rate:  that  the  carrier  company  fur- 
nished to  their  agents  at  the  point 
of  shipment  printed  forms  for  bills 
of  lading  that  were  uniform  in  their 
terms,  and  contained  the  provisions 
relied  upon  in  this  case,  and  that  the 
agent  had  no  authority  to  receive, 
and  would  not  have  received,  the 
cotton  except  under  said  bills.  It 
was  shown  that  tlie  plaintiff  knew 
that  the  bills  contained  the  provis- 
ions relied  upon,  and  that  he  made 
no  objections  to  the  rate  fixed,  or 
to  the  provisions  contained  in  the 
bills."    It  was  held  in  tliis  case  that 


488 


€H.  VIII.]  CONTRACTS TRANSPORTATION    OF    GOODS. 


[§  513. 


In  Wehmann  v.  Minneapolis  R.  Co}  the  court  say:  "Such  a 
clause  (a  clause  stipulating  to  limit  liability)  to  be  of  force 
must  stand  as  a  contract  between  the  shipper  and  the  carrier, 
and  as  in  the  case  of  all  contracts  there  must  be  a  consideration 


the  contract  relied  upon  was  in- 
valid. In  Demingetal.  v.  Mercliants' 
Cotton  Press,  etc.  Co.,  90  Tenn.  y06, 
13  L.  R.  A.  518,  it  was  held  that  "  car- 
riers making  a  through  contract  for 
the  shipment  of  merchandise, 
whether  tlirough  an  initial  line 
agreeing  to  ship  beyond  its  own 
road,  or  through  a  transportation 
company.having  no  line  of  its  own, 
but  simply  authorized  to  ship  over 
connecting  lines,  may  insert  therein 
a  fire-exemption  clause,  although  no 
offer  is  made  to  assume  the  risk  for 
additional  compensation,  since  there 
is  no  common-law  liability  to  make 
thethrough shipment."  "Alower rate 
of  freight,  or  some  other  equivalent, 
will  be  a  sufficient  consideration  for 
the  stipulation."  Dillard  v.  Louis- 
ville &  N.  R  Co.,  2  Lea,  293;  York 
R.  Co.  V.  111.  Cent.  R.  Co.,  3  Wall.  107. 
158  Minn.  22,  59  N.  W.  546.  The 
court  of  West  Virginia  in  Berry  v. 
W.  Va.  R.  Co.,  44  W.  Va.  538,  say: 
"  This  court  has  not  denied  the  valid- 
ity of  the  contracts  of  common  car- 
riers limiting  their  liability,  but  it 
has  held  that  they  cannot  exempt 
from  negligence  of  the  carrier.  (Cit- 
ing cases.)  But  in  these  cases  it  was 
explicitly  stated  that  there  must  be  a 
valuable  consideration  for  such  spe- 
cial contract,  and  such  I  understand 
to  be  the  general  law."  Citing  Zouch 
v.  Railroad  Co.,  36  W.  Va.  524;  Brown 
V.  Express  Co.,  15  W.  Va.  812;  Maslin 
V.  Railroad  Co.,  14  W.  Va.  180.  In 
Baltimore,  etc.  Co.  v.  Crawford,  65 
111.  App.  113,  it  was  held  in  substance 
that  a  provision  in  a  contract  of  ship- 
ment exempting  the  carrier  from 
liability  for  injury  occasioned  by  fire 
is  not  enforceable  unless  supported 
by  a  reduction  of  charges,  or  some 


other  consideration;  and  the  fact 
that  free  transportation  is  given  a 
servant  of  the  shipper  is  not  a  suffi- 
cient consideration  for  such  exemp- 
tion where  the  contract  relieves  the 
carrier  of  its  common-law  duty  to 
care  for  the  stock  while  in  transit, 
and  imposes  it  upon  the  shipper.  In 
Kellerman  v.  Kansas,  etc.  R.  Co..  68 
Mo.  App,  255,  it  was  held:  "In  a 
shipping  contract  the  consideration 
clause  read:  'In  consideration  of 
tariff  dollars  per  car,'  etc.  Held,  that 
this  meant  the  tariff  arranged  by  the 
railroad  commission  according  to  the 
law,  and  was  not  a  reduced  rate  such 
as  is  necessary  to  furnish  the  con- 
sideration for  limiting  the  carrier's 
liability."  In  Stewart  v.  Cleveland, 
etc.  R.  Co.,  21  Ind.  App.  218,  52  N.  E. 
89,  a  contract  limiting  a  cai'rier's 
liability  to  plaintiff  expressed  a  con- 
sideration of  a  reduced  rate.  The 
carrier  had  but  one  form  of  contract, 
but  also  had  bills  of  lading.  In  plaint- 
iff's prior  shipments  he  had  always 
paid  the  reduced  rate,  although  he 
had  not  always  signed  such  a  con- 
tract. The  evidence  showed  that  the 
carrier  did  not  require  all  shippers  to 
sign  such  a  contract,  but  did  not 
show  what  rates  such  shippers  re- 
ceived; and  it  also  showed  that  the 
regulation  requiring  a  liigher  rate  in 
the  absence  of  such  contract  was 
"not  practiced."  Held,  that  the  con- 
tract was  for  a  valid  consideration. 
In  Ward  v.  Missouri  Pac.  Ry.  Co.,  158 
Mo.  226,  it  was  held  in  substance  that 
a  contract  of  shipment  of  goods  from 
one  state  to  another  stated  that  the 
rate  charged  was  special,  and  given 
in  consideration  of  a  limited  valua- 
tion placed  on  the  good.s,  for  which 
the  carrier  should  be  liable.    The  evi- 


489 


§  514.]  CARKIEKS.  [part    V. 

for  it.  One  exercising  the  employment  of  a  common  carrier 
of  goods  is  bound  to  receive  and  carry  such  (within  the  class  of 
goods  that  he  carries)  as  are  tendered  to  him  for  the  purposes, 
and,  in  the  absence  of  special  contract,  to  carry  them  with  the 
full  common-law  liability  of  a  common  carrier.  His  receipt  of 
and  undertaking  to  carry  them,  being  a  duty  imposed  on  him 
by  law,  is  not  a  consideration  to  support  such  special  contract. 
There  must  be  some  other.  That  is  generally  furnished  by 
some  concession  in  rates.  And  where  the  agreement  is  set 
forth  in  the  contract  for  carriage,  it  would  probably  be  pre- 
sumed that,  in  a  case  where  parties  could  make  any,  there  was 
some  such  concession  as  a  consideration  for  relieving  the  car- 
rier of  part  of  his  common-law  liability." 

§  514.  Option  to  the  shipper  to  accept  contract  lim- 
iting liability. —  In  the  discussion  of  the  questions  arising  as 
to  the  right  of  the  carrier  to  limit  his  extraordinary  liability, 
we  are  confronted  with  the  other  rule  fixing  a  duty  upon  the 
carrier  to  receive  and  transport  the  freight  of  all  who  offer  it 
for  transportation,  if  within  the  line  of  their  carrier  business. 
So,  the  question  arises,  supposing  the  shipper  declines  to  accept 

dence  showed  that  the  rate  charged  do  not  think  that  such  failure  on  de- 
fer shipment  was  the  regular  rate,  fendant's  part  was  material  to  the 
Held,  tliat  the  contract  of  shipment  disposition  of  the  case,  for  the  reason 
did  not  limit  the  consignee's  right  to  that  it  is  entirely  competent  for  the 
recover  the  full  value  of  goods  lost  in  parties  to  enter  into  a  contract;  and 
transit,  and  the  fact  that  the  shipper  where  it  appears  that,  in  considera- 
was  required  to  sign  a  stipulation  tion  of  a  stipulated  sum.  the  carrier 
that  the  carrier's  liability  should  not  agrees  to  perform  certain  services 
exceed  a  certain  amount,  in  order  to  upon  condition  of  certain  exemp- 
get  the  rate  charged  plaintiff,  does  tions,  sufficient  consideration  is  to  be 
not  show  that  the  rate  charged  was  found  in  the  carrier's  obligation  thus 
not  the  regular  rate.  But  see  Rubens  assumed  to  support  the  exemptions 
V.  Ludgate  Hill  Steam  Co.,  20  N.  Y.  S.  provided  for  in  the  contract.  Were 
481,  where  the  court  held  to  a  differ-  there  a  statute  requiring  the  carrier 
ent  rule,  saying,  "  there  still  remains  to  transport  goods  at  certain  specified 
a  subsidiary  question  as  to  the  effect  rates,  another  question  might  be 
of  the  failure  to  prove  the  allegation  presented;  but,  in  the  absence  of  any 
of  the  answer,  that  the  consideration  such  statute  or  law  binding  upon  the 
for  these  exemptions  and  exceptions  carrier  to  transport  at  certain  fixed 
accorded  to  the  defendant  was  the  rates,  we  can  see  no  good  reason  why 
low  rate  of  freight  the  defendant  the  shipper  and  carrier  may  not 
agree  to  accept  as  a  condition  to  its  enter  into  a  contract  upon  such  terms 
release  from  any  liability  for  loss  re-  and  conditions  as  may  be  agreed 
suiting  from  causes  exempted.     We  upon  between  them." 

490 


J 


CH.  VIII.]  CONTKACTS TKANSPORTATION    OF    GOODS.  [§   514. 

a  contract  which  embraces  a  limitation  of  liability  upon  the 
carrier?  Supposing  he  demands  that  he  shall  have  the  benefit 
of  that  insurance  which  the  common  carrier,  under  his  common- 
law  liability,  is  held  to  be  obliged  to  give  to  the  shipper?  These 
questions  have  been  raised  and  met  by  the  courts,  and  it  has 
been  held  that  the  shipper  cannot  be  deprived  of  this  right  to 
insurance  w^hich  the  common  law  required  of  the  carrier,  but 
that  the  carrier  must  give  to  the  shipper  an  option  that  he  will 
carry  his  freight,  with  the  insurance  that  the  common-law  lia- 
bility gives  to  the  shipper  for  a  certain  rate  proportionate  to 
the  risk  that  is  undertaken  by  the  carrier,  or,  that  he  will  carry 
it  for  a  less  rate  in  consideration  of  a  limitation  of  liability  as 
set  forth  in  the  contract.  This  question  was  fairly  before  the 
court  in  the  case  of  Little  Rock,  etc.  R.  Co.  v.  Craven.^  The 
opinion  is  very  full  and  the  principles  clearly  stated.  The  courts 
holding  to  this  doctrine  base  their  opinion  upon  the  principle 
of  law  that  contracts  obtained  from  the  shipper  limiting  the 
liability  of  the  carrier  must  be  fair,  reasonable  and  just,  and  at 
the  same  time  recognizing  the  unequal  ground  upon  which  the 
parties  stand;  the  shipper  often  being  compelled  to  accept  such 
stipulations  in  the  bill  of  lading  as  the  carrier  sees  fit  to  insert 
in  order  to  forward  his  commodity;  that  he  is  not  really  left 
to  his  own  free  will  but  must  take  whatever  is  offered.  It  is 
in  defense  of  the  shipper's  right,  and  because  of  that  doctrine 
of  public  policy  which  has  been  so  frequently  alluded  to,  that 
the  courts  take  this  position,  and  it  would  seem  that  every 
principle  upon  which  the  law  of  contract  is  based  would  de- 
mand that  there  should  be  given  to  the  parties  an  option  of 
free,  open  and  absolute  consent  —  a  consent  that  is  given  de- 
liberately and  from  choice  rather  than  that  consent  which  is 
forced,  and  given  because  there  is  no  alternative. 

In  Louisville  <&  JV.  R.  Co.  v.  Gilhertj^  where  it  was  shown 
that  a  railroad  company  had  made  no  reduction  in  its  freight 
rates  in  consideration  of  a  stipulation  in  a  bill  of  lading  ex- 

1  57  Ark.  112, 18  L.  R.  A.  527.  A  car-  such  dangerous  articles.     California 

rier   receiving  blasting  powder  for  Powder  Works  v.  Atlantic  &  P.  R. 

transportation  can  insist  upon  such  Co.,  113  Cal.  229,  4  Am.  &  Eng.  R. 

terms  and  limitations  of  common-  Cases  (N.  S.),  301,  36  L.  R.  A.  648. 
law  liability  as  it  sees  fit,  since  it  is        ^  88  Tenn.  430. 
not  obliged  to  receive  and  transport 

491 


§  515.]  CARKIERS.  [part    V. 

empting  it  from  loss  by  fire,  and  had  furnished  its  agents  with 
no  form  of  bill  of  lading  not  containing  a  fire  clause,  and  had 
given  to  their  agent  no  authorit}^  to  submit  to  the  shipper  the 
alternative  of  paying  a  higher  rate  for  a  shipment  with  the 
common-law  responsibility  attaching  to  the  company,  it  was 
held  that  the  company  was  liable  for  goods  destroyed  by  fire, 
though  its  officers  testify  that  the  company  had  no  higher 
freight  rate  where  the  limited  liability  clause  was  omitted 
from  the  billof  lading,  and  that  if  the  shipper  had  so  requested 
permission  would  have  been  given  the  shipper  under  a  contract 
without  the  fire  clause  in  it;  the  holding  of  the  court  being 
upon  the  ground  that  the  stipulation  was  unreasonable  and  un- 
just, and  was  not  a  valid  limitation  of  the  company's  liability 
as  a  common  carrier. 

And  in  Atchison,  Tojoeka,  etc.  R.  Co.  v.  Dill,^  it  w^as  held 
"  that  a  carrier  cannot  exact,  as  a  condition  precedent  for  car- 
rying stock  or  goods,  that  the  shipper  must  sign  a  contract  in 
writing  limiting  the  common-law^  liability,  and  that  where  a 
carrier  has  two  rates  for  carrying  stock  or  goods,  one  if  car- 
ried under  the  common-law  liability,  and  the  other  if  carried 
under  a  special  contract,  the  shipper  must  have  real  freedom 
of  choice  in  making  his  selection  or  he  will  not  be  bound  by 
the  special  contract." 

§  515.  Contract  must  be  reasonable,  fair  and  without 
fraud. —  As  we  have  said,  the  parties  to  the  contract  limiting 
the  liability  stand  upon  an  uneven  footing;  the  carrier  has  an 
advantage  over  the  shipper.  It  often  happens  that  the  ship- 
per is  compelled  to  accept  a  very  different  contract  from  that 
which  he  would  desire,  and  hence  it  is  that  the  law  has  a  jeal- 
ous care  over  the  rights  of  the  shipper  in  this  particular.  The 
contract  must  be  fair  and  reasonable,  and  if  it  is  clear  that  the 
carrier  has  made  unreasonable  demands  and  succeeded  in  ob- 
taining advantage  because  of  the  vantage  ground  he  occupies, 
the  courts  will  not  sustain  the  contract.  It  is  upon  this  prin- 
ciple that  it  has  been  held  that  the  catldetr  shall  have  the  op- 


1 48  Kan.  210.  "A  stipulation  in  a  the  destination,  is  valid  where  it  has 
through  bill  of  lading  of  non-liabil-  a  rate  over  its  own  line  for  which,  if 
ity  for  loss  by  fire  through  the  whole  required,  it  assumes  responsibilities 
distance,  issued  by  a  carrier  having  for  such  loss."  Deming  v.  Merchants' 
a  line  extending  only  part  way  to    Cotton  Press,  etc.  Co.,  90  Tenn.  306. 

493 


Oil.  VIII,]  CONTRACTS  —  TEANSrOKTATION    OF    GOODS.  [§  515, 

tion  to  accept  a  contract  of  limited  liability,  or  insist  upon 
obtaining  from  the  company  the  insurance  that  the  common 
law  has  required  of  the  carrier.  Certainly,  if  the  limitation 
was  obtained  by  fraud  it  would  be  void,  as  fraud  vitiates  all 
contracts.  The  question  of  reasonableness  and  unreasonable- 
ness is  one  of  fact  for  the  jury,  under  proper  instructions  from 
the  court,  and  so  it  may  be  said  that  no  fixed  rule  can  be  laid 
down  with  reference  to  what  is  reasonable  and  what  is  unrea- 
sonable, but  that  each  case  must  stand  upon  its  own  facts. 

"Where  the  shipper  of  cattle  had  an  agreement  with  the  car- 
rier as  to  their  shipment,  and  proceeding  upon  such  agreement 
loaded  the  cattle  into  the  carrier's  cars,  but  when  they  were  all 
loaded  and  the  cars  were  sealed  and  the  train  about  to  start 
the  agent  of  the  carrier  presented  another  contract  in  writing 
to  be  signed  by  the  shipper,  which,  while  it  contained  the  same 
rate  for  shipping  that  had  been  agreed  upon,  contained  other 
stipulations  differing  from  the  first  agreement,  which  contract 
the  shipper  signed  not  having  an  opportunity  to  look  it  over, 
and  knowing  that  unless  it  was  so  signed  the  cattle  would  not 
be  sent  forward,  the  court  held  that  the  contract  lacked  mutu- 
ality, and  if  unfair  could  not  be  enforced.  The  court  say: 
"  Under  this  state  of  facts,  can  it  be  said  that  the  written  con- 
tract in  question  was  a  mutual  agreement,  and  that  the  minds 
of  the  parties  had  met  upon  its  essential  features?  We  think 
there  can  be  but  one  answer  to  this  question,  notwithstanding 
the  theory  of  some  authorities  that  hold  that  an  execution  of 
a  bill  of  lading  by  the  shipper  with  restrictive  conditions 
estops  him  from  denying  that  he  assented  to  its  terms.  In 
cases  where  the  courts  have  so  held,  it  appeared  that  the  exe- 
cution was  concurrent  with  the  delivery  of  the  goods  for  ship- 
ment. This  is  a  distino'uishino:  feature  from  the  facts  of  this 
case,  for  here  it  is  clearly  shown  that  the  goods  had  been  de- 
livered to  the  carrier  and  received  by  it  previous  to  the  time 
the  written  instrument  was  signed  and  delivered.  But  to  the 
extent  that  the  doctrine  of  these  cases  may  be  opposed  to  our 
views,  we  think  they  should  in  reason  yield  to  the  principles 
asserted  in  that  line  of  authorities  that  hold  that  where  goods 
are  delivered  to  a  carrier  under  a  verbal  contract,  not  limiting 
its  liability,  and  afterwards  an  instrument  limiting  the  carrier's 
common-law  liability  is  delivered  or  executed,  it  must  be  upon 

493 


§  516.] 


OAKKIERS. 


[part 


the  knowledge  and  assent  of  the  shipper,  or  that  he  knew  there 
were  some  special  terras  imposed  upon  him  in  the  written 
instrument,  and  that  he  was  willing  and  content  to  accept  them 
without  examination."  ^ 

In  Simo7is  v.  Great  Western  R.  Co?  it  was  proved  on  the  part 
of  the  plaintiff  ''  that  when  asked  by  a  clerk  of  defendant's 
at  the  time  the  goods  were  delivered  at  the  company's  ware- 
house to  sign  the  paper,  the  plaintiff  expressed  his  unwilling- 
ness to  do  so,  inasmuch  as  he  could  not  see  to  read  it,  where- 
upon the  clerk  said  that  it  was  of  no  consequence,  and  that  the 
signature  was  a  mere  matter  of  form;  and  that  the  plaintiff, 
relying  upon  that  assurance,  signed  the  paper,  it  was  held  that 
upon  this  evidence  the  jury  were  warranted  in  finding  that  the 
goods  were  not  delivered  to  the  company  to  be  carried  under 
the  special  contract." 

§516.  The  contract,  how  made. —  As  we  have  seen,  the 
contract  for  limiting  the  liability  of  the  carrier  must  be  a 
special  contract  between  the  shipper  and  the  carrier.  Gener- 
ally, it  is  written  into  the  bill  of  lading  as  a  part  of  it,  but  it 
need  not  necessarily  be  so  written.  A  parol  or  verbal  con- 
tract may  exist  between  the  parties  and  be  binding.     The  con- 


i  il.,  K.  &  T.  Ry.  Co.  V.  Carter,  9 
Tex.  App.  685;  Exp.  Co.  v.  Stettaners, 
61  111.  186;  Railway  Co.  v.  Reynolds. 
17  Kan.  254;  Railway  Co.  v.  Boyd,  91 
111.  271;  Bostwick  v.  Railway  Co.,  45 
N.  Y.  T15;  Gaines  v.  Transp.  Co.,  28 
Ohio  St.  437;  Gott  v.  Dinsmore,  111 
Mass.  52 ;  Railway  Co.  v.  Jury.  1 1 1 U.  S. 
591,  592;  Railway  Co.  v.  Mfg.  Co.,  16 
Wall.  324;  Navigation  Co.  v.  Bank, 
<5  How.  382;  Railway  Co.  v.  Barrett, 
36  Ohio  St.  452;  Railway  Co.  v.  Camp- 
bell. 36  Ohio  St.  658;  Transp.  Co.  v. 
Ley  so  r,   89   111.   45;    Railway   Co.  v. 
Cravens,  20  S.  W.  803-807;  Railway 
Co.  V.  Lock  wood,  17  Wall.  359;  Ex- 
press   Co.   V.    Moon,    39    Miss.    832 
Transp.   Co.    v.    Dater,    91    111.    195 
Levering  v.  Transp.  Co.,  42  Mo.  88 
Express  Co.  v.    Haynes,   42   111.  89 
Express  Co.  v.  Spellman,  90  III.  456 
Adams  v.   Buckland,   97   Mass.   124. 
Also  the  decisions  of  the  House  of 

494 


Lords  in  Henderson  v.  Stephenson, 
L.  R.  Sc.  &  Div.  App.  470;  Parker  v. 
Railroad  Co.  (High  Court  of  Justice), 
25  S.  W.  97,  5  Cent.  Law  Jour.  134,  3 
Am.  &  Eng.  Encyc.  of  Law,  859;  2  id. 
822;  2  Rorer  on  Railways,  1320. 

2  2  C.  B.  (N.  S.)619;  Kansas  City  v. 
Simpson,  30  Kan.  645.  "  Where  a 
horse  was  shipped  by  rail  and  the  bill 
of  lading  was  signed  by  the  carrier 
and  the  agent  of  the  shipper,  and 
provided,  among  other  things,  value 
not  to  exceed  one  hundred  dollars, 
which  was  arbitrarily  inserted  in  the 
bill  of  lading  by  the  carrier,  and 
through  the  carrier's  negligence  the 
horse  was  injured,  held,  in  an  action 
by  the  shipper  for  damages,  that 
his  recovery  was  not  limited  by  the 
words  '  value  not  to  exceed  one  hun- 
dred dollars.' "  Hance  v.  Wabash, 
etc.  K  Co.,  56  Mo.  App.  476. 


\ 


ClI.   VIIT.]  CONTKACTS TKANSPOETATIOISr    OF    GOODS.  [§   516. 

tract  that  is  written  is  not  always  signed  by  the  shipper.  Some 
of  the  authorities  have  required  that  it  should  be  so  signed,  but 
the  weight  of  authority  does  not  demand  that  it  shall  be  signed 
by  the  shipper,  and  it  is  generally  held  that  the  acceptance  by 
the  shipper  of  a  bill  of  lading,  or  a  written  contract  limiting 
the  liability  of  the  carrier,  is  sufficient  to  complete  the  con- 
tract between  the  parties,  provided  there  is  no  fraud  or  unfair 
dealing  on  the  part  of  the  carrier. 

The  completion  of  the  contract  by  its  acceptance  by  the 
shipper  has  come  to  be  favored  by  the  courts,  because  it  is 
in  these  days  a  matter  of  common  knowledge  and  well  under- 
stood among  shippers  that  it  is  the  habit  of  common  carriers 
to  limit  their  liability,  and  so  it  is  expected  by  every  shipper 
that  certain  conditions  and  stipulations  with  reference  to  the 
liability  of  the  carrier  will  be  written  or  printed  into  every 
bill  of  lading.  So  thoroughly  has  this  come  to  be  under- 
stood that  the  courts  have  gone  so  far  as  to  hold  that  it  would 
not  be  material  to  prove,  in  a  case  where  such  a  contract  was 
involved,  that  the  shipper  did  not  read  the  bill  of  lading  before 
accepting  it.  And  where  a  shipper  of  goods  filled  out  a  blank 
receipt  contained  in  a  book  previously  furnished  by  an  express 
■compan}^  for  his  use,  and  obtained  the  signature  of  the  com- 
pany's agent  thereto  upon  the  deliver}'  to  the  company  of  a 
package  for  transportation,  the  court  held  that  the  shipper 
was  presumed  to  know  the  contents  of  the  receipt,  and  if  he 
received  such  receipt  without  objection,  his  consent  to  its  con- 
ditions will,  in  the  absence  of  fraud,  be  conclusively  presumed. 
The  court  say:  "The  plaintiff  understood  it  to  be  the  shipping 
contract,  and  in  the  absence  of  fraud,  by  receiving  it  without 
objection,  he  is  conclusively  presumed  to  consent  to  its  condi- 
tions. It  is  now  generally  held  that  the  responsibilities  im- 
posed on  the  carrier  of  goods  by  the  common  law  may  be  re- 
stricted and  qualified  by  express  stipulation  where  such  stipu- 
lation is  just  and  reasonable;  and  a  stipulation  that  the  carrier 
shall  be  informed  as  to  the  value  of  the  goods  delivered  to  him 
for  carriage  as  affecting  the  risk  and  degree  of  care  required 
is  clearly  reasonable."^  But  the  acceptance  of  the  bill  of  lading 
with  the  contract  limiting  the  liability  of  the  carrier  is  held 

1  Durgin  v.  Am.  Exp.  Co.,  66  N.  H.  277,  9  L.  R.  A.  452;  Merrill  v.  Am.  Exp. 
€0.,  62  N.  IL  514;  Grace  v.  Adams,  100  Mass.  505. 

495 


§   51G.]  CARRIERS.  [part    V. 

not  to  estop  the  shipper  from  denying  its  validity  upon  the 
ground  of  its  unreasonableness,  because  of  the  unequal  footing 
of  the  parties  to  the  contract.^ 

In  Gi'ace  v.  Adams  et  al?  it  appeared  that  the  plaintiff  de- 
livered to  the  Adams  Express  Company,  as  common  carriers, 
at  Wilmington,  a  package  containing  $150  directed  to  one 
Corbett  in  Massachusetts;  that  at  the  same  time  the  express 
company  delivered  to  the  plaintiff  a  bill  of  lading  containing 
the  stipulation  that  the  company  would  not  be  liable  in  any 
manner  or  to  any  extent  for  any  loss,  damage  or  detention  of 
such  package,  or  of  its  contents  or  any  portion  thereof,  occa- 
sioned by  danger  of  railroad  transportation,  or  ocean  or  river 
navigation,  or  by  fire,  etc.  The  package  was  shipped  and  was 
accidentally  burned  with  the  ship  that  conveyed  it.  It  also  ap- 
peared that  the  plaintiff  when  he  received  this  bill  of  lading 
did  not  read  it.  The  court  say:  "The  receipt  was  delivered 
to  the  plaintiff  as  the  contract  of  the  defendants ;  it  is  in  proper 
form,  and  the  terms  and  conditions  are  expressed  in  the  bod}'- 
of  it  in  a  way  not  calculated  to  escape  attention.  The  accept- 
ance 'of  it  by  the  plaintiff,  at  the  time  of  the  delivery  of  his 
package,  without  notice  of  his  dissent  from  its  terms,  authorized 
the  defendants  to  infer  assent  by  the  plaintiff.  It  was  his  only 
voucher  and  evidence  against  the  defendants.  It  is  not  claimed 
that  he  did  not  know,  when  he  took  it,  that  it  was  a  shipping 
contract  or  a  bill  of  lading.  It  was  his  duty  to  read  it.  The 
law  presumes,  in  the  absence  of  fraud  or  imposition,  that  he 
did  read  it,  or  was  otherwise  informed  of  its  contents,  and  was 
willing  to  assent  to  its  terras  without  reading  it.  Any  other 
rule  would  fail  to  conform  to  the  experience  of  all  men.  Writ- 
ten contracts  are  intended  to  preserve  the  exact  terms  of  the 
obligations  assumed,  so  that  they  may  not  be  subject  to  the 

1  Pacific  Coast  S.  S.  Co.  v.  Bancroft-  v.  New  York  Cent.  R.  Co.,98  Mass.  239; 
Whitney  Co.,  94  Fed.  180,  held  that  Rubens  v.  Ludgate  Hill  S.  S.  Co.,  20 
"A  shipper  is  not  estopped  to  deny  N.  Y.  S.  481;  Toy  v.  Long  Island 
the  validity  of  a  provision  of  a  bill  of  Co.,  56  N.  Y.  S.  182.  See  Cent.  R.  Co. 
lading  on  the  ground  of  its  uni-ea-  v.  Hasselkus,  91  Ga.  382,  17  S.  E. 
sonableness.  since  he  does  not  stand  838,  where  it  was  held  that  "  mere  ae- 
on an  equal  footing  with  the  carrier  ceptance  of  the  bill  of  lading  does 
in  accepting  the  bill  of  lading."  not  establish  the  shipper's  assent  to 

2  100  Mass.  505;  Rice  v.  Dwight  stipulations  limiting  the  carriers 
Mfg.  Co.,  2  Cush.  80;  Lewis  v.  Great  liability." 

Western  R.  Co.,  5  H.  &  N.  67;  Squire 

496 


CII.  VIII.]  CoNTIiACTS — TEANSPOKTATION    OF    GOODS.  [§  517. 

chances  of  a  want  of  recollection  or  an  intentional  misstate- 
ment. The  defendants  have  a  right  to  this  protection,  and  are 
not  to  be  deprived  of  it  by  the  wilful  or  negligent  omission  of 
the  plaintiff  to  read  the  paper."  The  court  held  that  receiv- 
ing the  contract  without  dissent  discharged  the  carrier  from 
liability  for  loss  by  fire  not  caused  by  his  own  negligence. 

§  517.  Contract  limitiug  the  time  in  which  to  present 
claim  or  commence  suit. —  The  law  recognizes  that  there  are 
reasons  for  upholding  contracts  containing  a  limitation  as  to 
the  time  in  which  the  shipper  must  present  his  claim,  or  bring 
suit  for  it,  and  it  seems  to  be  the  general  consensus  of  opinion 
of  the  courts  that  the  claim  should  be  presented  within  a  rea- 
sonable time,  and  that  therefore  a  limitation  clause  in  the  con- 
tract which  is  reasonable  as  to  time  will  be  upheld.  It  seems 
that  this  rule  has  its  foundation  in  justice  and  good  judgment. 

The  great  bulk  of  business,  as  is  well  understood,  is  done  by 
railroad  and  steamship  companies  handling  vast  amounts  of 
freight  in  every  country  and  upon  every  coast.  It  is  there- 
fore no  more  than  reasonable  that  these  companies  which  are 
compelled  to  act  through  their  numerous  agents  and  servants, 
who  alone  know  of  the  circumstances  of  the  loss  or  injury  to 
the  property,  and  upon  whom  the  company  must  depend  to 
trace  the  goods  that  are  lost  and  to  restore  them,  should  be 
protected  in  their  stipulations  limiting  the  time  when  claims 
should  be  presented.  Upon  these  servants,  too,"  the  carrier 
must  necessarily  depend  for  testimony  as  to  the  facts  sustain- 
ing his  defense  in  case  suit  is  commenced.  To  say  that  stip- 
ulations limiting  the  time  for  commencement  of  suits  to  a  rea- 
sonable period  are  not  to  be  upheld  would  often  amount  to 
depriving  the  carrier  of  the  proofs  necessary  to  his  defense, 
and  necessary  to  give  to  the  court  and  the  jury  facts  that  are 
peculiarly  within  the  knowledge  of  the  agents  and  servants  of 
the  common  carrier.  Mr.  Justice  Strong,  in  Express  Go.  v. 
Caldwell,^  said :  "  A  common  carrier  is  always  responsible  for 
his  negligence  no  matter  what  his  stipulations  may  be.     But 

121  Wall.  264,  268;  St.  Louis,  etc.  Ky.  525;  Cleveland,  etc.  Co.  v.  Newlin, 
Co.  V.  Hurst,  67  Ark.  407;  Murris  v.  74  111.  App.  638;  Cox  v.  Vermont 
New  H.  Steamboat  Co.,  62  N.  Y.  S.  Cent.  R.  Co.,  170  Mass.  129,  49  N.  E. 
474;  Norfolk,  etc.  R.  Co.  v.  Reeves,  97;  Popham  v.  Barnard,  77  Mo.  App. 
97  Va.  284 ;  Brown  v.  Railroad  Co.,  100  619. 
32  497 


§  518.]  CAKEIEKS.  [PAET   V. 

an  agreement  that,  in  case  of  failure  by  the  carrier  to  deliver 
the  goods,  a  claim  shall  be  made  by  the  bailor,  or  by  the  con- 
signee, within  a  specified  period,  if  that  period  be  a  reasonable 
one,  is  altogether  of  a  different  character.  It  contravenes  no 
public  policy.  It  excuses  no  negligence.  It  is  perfectly  con- 
sistent with  holding  the  carrier  to  the  fullest  measure  of  good 
faith,  of  diligence,  and  of  capacity,  which  the  strictest  rules  of 
common  law  ever  required.  And  it  is  intrinsically  just  as  ap- 
plied to  the  present  case.  The  defendants  are  an  express  com- 
pany. "VVe  cannot  close  our  eyes  to  the  nature  of  their  business. 
They  carry  small  parcels,  easily  lost  or  mislaid,  and  not  easily 
traced.  They  carry  them  in  great  numbers.  Express  com- 
panies are  modern  conveniences,  and  notoriously  the}''  are  very 
largely  employed.  They  may  carry,  they  often  do  carry,  hun- 
dreds, even  thousands,  of  packages  daily.  If  one  be  lost,  or 
alleged  to  be  lost,  the  difficulty  of  tracing  it  is  increased  by 
the  fact  that  so  many  are  carried,  and  it  becomes  greater  the 
longer  the  search  is  delayed.  If  a  bailor  may  delay  giving 
notice  to  them  of  a  loss,  or  making  a  claim  indefinitely,  they 
may  not  be  able  to  trace  the  parcels  bailed,  and  to  recover 
them,  if  accidentally  missent,  or  if  they  have  in  fact  been  prop- 
erl}''  delivered.  With  the  bailor  the  bailment  is  a  single  trans- 
action of  which  he  has  full  knowledge;  with  the  bailee,  it  is 
one  of  a  multitude.  There  is  'no  hardship  in  requiring  the 
bailor  to  give  notice  of  the  loss,  if  any,  or  make  a  claim  for 
compensation  within  a  reasonable  time  after  he  has  delivered 
the  parcel  to  the  carrier.  There  is  great  hardship  in  requiring 
the  carrier  to  account  for  the  parcel  long  after  that  time,  when 
he  has  had  no  notice  of  any  failure  of  duty  on  his  part,  and 
when  the  lapse  of  time  has  made  it  diflScult,  if  not  impossible, 
to  ascertain  the  actual  facts.  For  these  reasons  such  limitations 
have  been  held  valid  in  similar  contracts,  even  when  they  seem 
to  be  less  reasonable  than  in  the  contracts  of  common  carriers." 
§  518.  Contract  limiting  liability  need  not  be  in  writing. 
"While  the  contract  limiting  the  liability  must  be  a  special  one, 
it  need  not  be  in  writing;  it  may  be  oral.  Whether  written 
or  oral  it  must  be  clear  and  explicit,  and  well  understood  so 
that  it  can  be  fully  proven.  If  the  contract  be  oral,  it  may  be 
proven  by  any  competent  evidence  that  will  show  its  existence 
and  terms. 

498 


CH.  VIII.]  CONTEACTS  —  TRANSPORTATION    OF    GOODS.  [§519. 

Mr.  Justice  Campbell,  in  Ametnccm  Trcms.  Co.  v.  Moore^  said: 
"  "While  it  is  true  that  it  devolves  upon  a  carrier  to  show  affirm- 
atively the  terms  of  any  contract  which  lessens  his  common- 
law  liability,  yet  that  fact  is  to  be  proved,  like  any  other,  by  any 
pertinent  evidence.  If  in  writing,  the  writing  must  be  shown ; 
but  if  by  parol,  there  is  no  rule  which  requires  different  proof 
from  that  which  would  establish  any  other  contract.  It  does 
not  matter  that  the  evidence  is  conflicting,  for  in  civil  cases 
the  jury  must  always  decide  upon  the  weight  of  evidence;  and 
there  is  no  rule  (except  where  turpitude  or  illegality  is  in  issue) 
which  requires  one  contract  to  be  proven  by  more  or  different 
testimony  than  another.  The  jury,  in  each  case,  must  be  sat- 
isfied that  a  certain  contract  exists;  and,  if  satisfied,  that  is 
sufficient." 

The  usual  rules  of  evidence  obtain  in  respect  to  written 
and  oral  contracts,  in  this  case  as  in  others;  that  is  to  say,  if 
the  contract  has  been  put  in  writing  by  the  parties,  it  cannot 
be  contradicted  by  parol  proof  of  the  various  oral  understand- 
ings, for  the  written  contract  will  be  held  to  have  merged  in 
itself  all  the  prior  oral  agreements  touching  the  same  subject; 
and  when  such  contract  does  not  run  counter  to  the  principles 
we  have  already  discussed  that  might  avoid  or  modify  it,  the 
contract  that  is  written  will  stand  as  the  agreement  of  the 
parties.^ 

§  519.  Construction  of  the  contract  limiting  liability. — 
As  we  have  seen,  the  contract  limiting  the  liability  of  the  com- 
mon carrier  is  virtually  a  waiver  of  the  rights  of  the  shipper. 
The  shipper,  however,  may  insist  upon  those  rights;  he  may,  as 
we  have  seen,  insist  upon  the  shipment  of  his  goods  with  all 
the  liability  of  an  insurer  which  attaches  to  the  common  car- 
rier by  the  rules  of  the  common  law;  for  it  is  conceded  that 
this  liability,  laid  upon  the  common  carrier  by  the  rules  of  the 
common  law,  had  its  origin  in  public  policy.  The  contract 
which  limits  that  liability,  therefore,  is  not  only  a  waiver  of 
the  rights  of  the  shipper,  but  it  also  affects  and  changes  the 
rule  which  originated  in  public  policy.  It  may  be  further  said 
that  these  contracts,  although  they  may  be  supported  by  a  con- 
sideration moving  from  the  carrier,  are,  nevertheless,  largely 

1  5  Mich.  3G8,  379.  19  111.    136;    Gould   v.   Hill,   3    Hill 

2  Illinois  Cent.  R.  Co.  v.  Morrison,     (N.  Y.),  623. 

499 


§  520.] 


CAREIEKS. 


[part  V, 


in  the  interest  of  the  carrier.  Because  of  this  the  courts  have 
with  great  unanimity  —  indeed,  without  dissent  —  held  that 
they  must  be  strictly  construed,  and,  if  there  be  any  doubt  or 
ambiguity,  the  construction  should  favor  the  shipper. 

In  Fairbanks  (&  Co.  v.  C'uicinnati  R.  Co}  the  court  held  "  that 
exemptions  in  favor  of  a  common  carrier  in  bills  of  lading  are 
to  be  strictly  construed  against  the  carrier,  and  any  doubt  or 
ambiguity  therein  is  to  be  resolved  in  favor  of  the  shipper. 
And  when  the  particular  dangers  or  risks  against  which  the 
carrier  has  specifically  guarded  himself  in  his  receipt,  are  fol- 
lowed by  general  and  comprehensive  words  of  exemption,  the 
latter  are  to  be  construed  to  embrace  only  occurrences  ejus- 
dem  generis  with  those  previously  enumerated,  unless  there  is 
a  clear  intent  to  the  contrary."  - 

§  520.  Contracts  implied  from  notice. —  It  seems  to 

be  generally  conceded  by  the  courts  and  authorities  that  the 
carrier  cannot  limit  his  common-law  liability  by  a  mere  gen- 
eral notice. 

Chief  Justice  Bigelow,  in  Judson  v.  Western  R.  Co.^  clearly 
states  the  prevailing  doctrine  in  this  country.  He  saj^s:  "But 
it  is  a  very  different  proposition  to  assert  that  a  common  car- 
rier may  escape  his  legal  liability  or  materially  change  it  by 
general  notice  to  all  persons  that  he  Avill  not  be  responsible 
for  the  loss  or  injury  of  property  intrusted  to  his  custody,  or 
only  liable  therefor  under  such  conditions  and  limitations  as 
he  may  think  proper  to  impose.     A  common  carrier  is  in  a 


1 47  U.  S.  App.  744,  38  L.  R.  A.  271; 
Black  V.  Goodrich  Traus.  Co.,  55 
Wis.  319,  42  Am.  Rep.  713;  Cream 
City  R.  Co.  V.  Ciiicago,  etc.  R.  Co..  63 
Wis.  93,  53  Am.  Rep.  267;  Little 
Rock,  etc.  R.  Co.  v.  Talbot,  39  Ark, 
529, 

'^  Hutchinson  on  Carriers  (2cl  ed.), 
275,  276;  Hawkins  v.  Great  Western 
R.  Co.,  17  Mich,  57,  97  Am.  Rep.  179; 
The  Caledonia,  157  U.  S.  124.  In 
Kennedy  v.  N.  Y,  C.  &  H.  R.  R.  Co., 
125  N,  Y.  422,  it  was  held:  "General 
words  in  the  contract  of  a  common 
carrier  limiting  his  responsibility 
will  not  be  construed  as  exempting 
it  from  liability  for  negligence,  when 


they  are  capable  of  other  construc- 
tion; the  rule  applies  both  to  car- 
riers of  persons  and  goods."  "The 
contract  hmiting  liability  must  be 
fairly  obtained,  must  be  just,  and 
reasonable."  Louisville  &  N,  R  Co. 
V.  Gilbert.  88  Tenn.  430. 

3  6  Allen,  486,  490,  83  Am.  Dec.  646; 
McMillan  v.  Michigan,  etc.  R  Co.,  6 
Mich.  79,  111;  Gott  v.  Dinsmore,  111 
Mass.  45;  Fillebrown  v.  Grand  Trunk 
R.  Co.,  55  Me,  462,  92  Am.  Rep.  606; 
111.  Cent.  R.  Co.  v.  Frankensberg,  54 
111.  88;  Davidson  r.  Graham,  2  Ohio 
St.  131;  Brown  v.  Adams  Exp.  Co.,. 
15  W.  Va.  812. 


500 


CH.  VIII.]         CONTRACTS  —  TKANSPOKTATION   OF   GOODS.  [§  520. 

certain  sense  a  public  servant,  exercising  an  employment  not 
merely  for  his  own  emolument  and  advantage,  but  for  the 
convenience  and  accommodation  of  the  community  in  which 
he  pursues  his  calling.  The  law  imposes  upon  him  certain 
duties  and  responsibilities  different  from,  and  greater  than, 
those  which  attach  to  an  occupation  of  a  purely  private  nature, 
in  regard  to  the  conduct  of  which  the  public  have  no  interest, 
and  which  can  be  carried  on  at  the  option  or  according  to  the 
pleasure  of  the  person  who  is  engaged  in  it.  A  common  car- 
rier cannot  legally  refuse  to  transport  property  of  a  kind  which 
comes  within  the  class  which  he  usually  carries  in  the  course 
of  his  employment,  if  it  is  tendered  to  him  at  a  suitable  time 
and  place,  with  an  offer  of  a  reasonable  compensation.  Like 
an  innkeeper,  he  is  obliged  to  exercise  his  calling  upon  due  re- 
quest under  proper  circumstances,  and  is  liable  to  an  action 
for  damages  if  he  wrongfully  refuses  to  do  so.  A  legal  obli- 
gation rests  upon  him  to  assume  the  duty  which  he  holds  him- 
self out  as  ready  to  perform.,  and  a  correlative  right  belongs 
to  the  owner  of  goods  to  ask  for  and  require  their  reception 
and  transportation  upon  the  terms  of  liability  fixed  and  de- 
fined by  the  established  rules  of  law.  The  carrier  has  not  the 
option  to  accept  or  refuse  the  carriage  of  the  goods  at  his 
pleasure;  but  the  person  seeking  to  have  them  transported 
can  choose  whether  they  shall  be  carried  without  any  restric- 
tion of  the  carrier's  duty  as  prescribed  by  law,  or  whether  he 
will  waive  a  portion  of  his  rights,  and  consent  to  a  modifica- 
tion of  the  legal  liability  which  attaches  to  the  carrier.  Such 
being  the  legal  relation  which  subsists  between  a  common  car- 
rier and  his  employer,  it  certainly  would  be  inconsistent  with 
it  to  hold  that  a  carrier,  by  a  mere  notice  brought  home  to  the 
owner  of  goods  intrusted  to  his  care  that  he  did  not  intend  to 
assume  all  the  liabilities  of  his  calling,  could  escape  or  mate- 
rially change  the  responsibility  which  the  law  annexes  to  the 
contract  of  the  parties.  It  would,  in  effect,  put  it  in  the  power 
of  the  carrier  to  abrogate  the  rules  of  law  by  Avhich  the  exer- 
cise of  his  employment  is  regulated  and  governed.  Certainly 
such  a  notice,  even  if  shown  to  have  been  within  the  knowl- 
edge of  the  owner  of  goods,  would,  in  the  absence  of  evidence 
of  his  direct  dissent  to  its  terms,  afford  no  sufficient  ground 
for  the  inference  that  he  had  voluntarily  agreed  without  any 

501 


§  520.]  CARRIEKS.  [part   V. 

consideration  to  relinquish  and  give  up  the  valuable  right  of 
having  his  goods  carried  at  the  risk  of  the  carrier." 

The  leading  case  in  this  country  is  Hollister  v.  Nowlen^ 
where  the  question  was  fairly  before  the  court.  The  court  say : 
"The  principal  question  in  the  cause  arises  out  of  the  notice 
given  by  the  coach  proprietors  that  baggage  carried  b}''  the 
telegraph  line  would  be  at  the  risk  of  the  owner;  and  the  first 
inquiry  is,  whether  there  was  sufficient  evidence  to  charge  the 
plaintiff  with  a  knowledge  of  the  notice.  If  we  are  to  follow 
the  current  of  modern  English  decisions  on  this  subject,  it  can- 
not be  denied  that  there  was  evidence  to  be  left  to  a  jury,  and 
upon  which  they  might  find  that  the  plaintiff  had  seen  the 
notice.  But  I  think  the  carrier,  if  he  can  by  any  means  re- 
strict his  liability,  can  only  do  so  by  proving  actual  notice  to 
the  owner  of  the  property.  I  agree  to  the  rule  laid  down  by 
Best,  C.  J.,^  when  the  courts  of  Westminster  Hall  had  com- 
menced retracing  their  steps  in  relation  to  the  liability  of 
carriers,  and  were  endeavoring  to  get  back  onto  the  firm 
foundation  of  the  common  law.  He  said:  'H  coach  proprie- 
tors wish  honestly  to  limit  their  responsibility,  they  ought  to 
announce  their  terms  to  every  individual  who  applies  at  their 
office,  and  at  the  same  time  to  place  in  his  hands  a  printed 
paper,  specifying  the  precise  extent  of  their  engagement.  If 
they  omit  to  do  this,  they  attract  customers  under  the  con- 
fidence inspired  by  the  extensive  liability  which  the  common 
law  imposes  upon  carriers,  and  then  endeavor  to  elude  that 
liability  by  some  limitation  Avhich  they  have  not  been  at  the 
pains  to  make  known  to  the  individual  who  has  trusted  them.^ 

"I  should  be  content  to  place  my  opinion  upon  the  single 
ground  that,  if  a  notice  can  be  of  any  avail,  it  must  be  directly 
brought  home  to  the  owner  of  the  property;  and  that  there 
was  no  evidence  in  this  case  which  could  properly  be  submitted 
to  a  jury  to  draw  the  inference  that  the  plaintiff  knew  on  what 
terms  the  coach  proprietor  intended  to  transact  his  business.  .  .  . 

"The  rules  of  the  common  law  in  relation  to  common  car- 
riers are  simple,  well  defined  and,  what  is  no  less  important, 
well  understood.  The  carrier  is  liable  for  all  losses  except  those 
occasioned  by  the  act  of  God  or  the  public  enemies.  He  is  re- 
garded as  an  insurer  of  the  property  committed  to  his  charge, 

1 19  Wend.  234.  2  Brooke  v.  Pickwick,  4  Bing.  21S. 

502 


CH.  VIII.]  CONTRACTS TEANSPOKTATION   OF   GOODS.  [§  520. 

and  neither  destruction  by  fire,  nor  robbery  by  armed  men,  will 
discharge  him  from  liability.     .    ,     . 

*'A  common  carrier  exercises  a  public  employment,  and  con- 
sequently has  public  duties  to  perform.  He  cannot,  like  the 
tradesman  or  mechanic,  receive  or  reject  a  customer  at  pleasure, 
or  charge  any  price  that  he  chooses  to  demand.  If  he  refuse 
to  receive  a  passenger  or  carry  goods  according  to  the  course 
of  his  particular  employment,  without  a  sufficient  excuse,  he 
will  be  liable  to  an  action ;  and  he  can  only  demand  a  reason- 
able compensation  for  his  services  and  the  hazard  which  he  in- 
curs.    .     . 

"  The  law  in  relation  to  carriers  has  in  some  instances  oper- 
ated with  severity,  and  they  have  been  charged  with  losses 
against  which  no  degree  of  diligence  could  guard.  But  cases 
of  this  description  are  comparatively  of  rare  occurrence;  and 
the  reason  why  they  are  included  in  the  rule  of  the  common 
law  is  not  because  it  is  fit  in  itself  that  any  man  should  an- 
swer without  a  fault,  but  because  there  are  no  means  of  effect- 
ually guarding  the  public  against  imposition  and  fraud  without 
making  the  rule  so  broad  that  it  will  sometimes  operate  harshly. 
It  is  well  remarked  by  Best,  C.  J.,  that  '  when  goods  are  deliv- 
ered to  the  carrier  they  are  usually  no  longer  under  the  eye  of 
the  owner;  he  seldom  follows  or  sends  any  servant  with  them 
to  their  place  of  destination.  If  they  should  be  lost  or  injured 
by  the  grossest  negligence  of  the  carrier  or  his  servants,  or 
stolen  by  them,  or  by  thieves  in  collusion  with  them,  the  owner 
would  be  unable  to  prove  either  of  these  causes  of  loss.  His 
Avitnesses  must  be  the  carrier's  servants,  and  they,  knowing 
that  they  could  not  be  contradicted,  would  excuse  their  mas- 
ters and  themselves.'     .     .     . 

"  There  is  less  of  hardship  in  the  case  of  the  carrier  than  has 
sometimes  been  supposed ;  for  while  the  law  holds  him  to  an 
extraordinary  degree  of  diligence,  and  treats  him  as  an  insurer 
of  the  property,  it  allows  him,  like  other  insurers,  to  demand 
a  premium  proportioned  to  the  hazards  of  his  employment. 
The  rule  is  founded  upon  a  great  prmciple  of  public  policy;  it 
has  been  approved  by  many  generations  of  wise  men;  and  if 
the  courts  were  now  at  liberty  to  make  instead  of  declaring 
the  law,  it  may  well  be  questioned  whether  they  could  devise 
a  system  which,  on  the  w^hole,  would  operate  more  beneficially. 

503 


§  520.]  CAREIERS.  [part    V. 

I  feel  the  more  confident  in  this  remark  from  the  fact  that  in 
Great  Britain,  after  the  courts  had  been  perplexed  for  thirty 
years  with  various  modifications  of  the  law  in  relation  to  car- 
riers, and  when  they  had  wandered  too  far  to  retrace  their 
steps,  the  legislature  finally  interfered  and,  in  all  its  most  im- 
portant features,  restored  the  salutary  rule  of  the  common 
law.     ,     .     . 

"  So  far  as  the  cases  have  proceeded  on  the  ground  of  fraud, 
and  can  properly  be  referred  to  that  head,  they  rest  on  a  solid 
foundation ;  for  the  common  law  abhors  fraud,  and  will  not  fail 
to  overthrow  it  in  all  the  forms,  whether  new  or  old,  in  wiiich 
it  may  be  manifested.  As  the  carrier  incurs  a  heavy  respon- 
sibility, he  has  a  right  to  demand  from  the  employer  such  in- 
formation as  will  enable  him  to  decide  on  the  proper  amount 
of  compensation  for  his  services  and  risk,  and  the  degree  of 
care  which  he  ought  to  bestow  in  discharging  his  trust;  and 
if  the  owner  give  an  answer  which  is  false  in  a  material  point, 
the  carrier  will  be  absolved  from  the  consequences  of  any  loss 
not  occasioned  by  negligence  or  misconduct.     .     .     . 

"  But  conceding  that  there  may  be  a  special  contract  for  a 
restricted  liabilit}'',  such  a  contract  cannot,  I  think,  be  inferred 
from  a  general  notice  brought  home  to  the  employer.  The  argu- 
ment is,  that  where  a  party  delivers  goods  to  be  carried  after 
seeing  a  notice  that  the  carrier  intends  to  limit  his  responsi- 
bility, his  assent  to  the  terms  of  the  notice  may  be  implied. 
But  this  argument  entirely  overlooks  a  very  important  consid- 
eration. Notwithstanding  the  notice,  the  owner  has  a  right 
to  insist  that  the  carrier  shall  receive  the  goods  subject  to  all 
the  responsibilities  incident  to  his  employment.  If  the  de- 
livery of  goods  under  such  circumstances  authorizes  an  impli- 
cation of  any  kind,  the  presumption  is  as  strong,  to  say  the 
least,  that  the  owner  intended  to  insist  on  his  legal  rights,  as 
it  is  that  he  was  willing  to  yield  to  the  wishes  of  the  car- 
rier.    .     .     . 

"  If  after  a  trial  of  thirty  years  the  people  of  Great  Britain, 
whose  interests  and  pursuits  are  not  very  dissimilar  to  our 
own,  have  condemned  the  whole  doctrine  of  limiting  the  car 
rier's  liability  by  notice ;  if  after  a  long  course  of  legal  contro 
versy  they  have  retraced  their  steps,  and  returned  to  the  sim- 
plicity and  certainty  of  the  common-law  rule,  we  surely  ought 

504 


i 


€11.  VIII.]  CONTEACTS TRANSPORTATION   OF    GOODS.  [^  520. 

to  profit  by  their  experience,  and  should  hesitate  long  before 
we  sanction  a  practice  which  not  only  leads  to  doubt  and  un- 
certainty concerning  the  rights  and  duties  of  the  parties,  but 
which  encourages  negligence,  and  opens  a  wide  door  to  fraud." 

It  may  be  said,  however,  that  there  are  certain  reasonable 
regulations  made  by  the  carrier  by  general  notice  which  are 
considered  binding  upon  the  shipper;  namely,  regulations  as 
to  the  manner  of  delivering  to  the  carrier  the  freight  for  trans- 
portation, the  giving  to  the  carrier  notice  of  the  character  of 
the  freight  when  not  apparent,  or  the  value  of  the  property 
that  is  being  shipped. 

Judge  Cooley,  in  McMillan  et  al.  v.  M.  S.  c&  N.  I.  R.  Co.^ 
quotes  with  approval  the  language  of  Greenleaf:  "'It  is  now 
well  settled  that  a  common  carrier  may  qualify  his  liability 
by  a  general  notice  to  all  who  may  employ  him  of  any  reason- 
able requisition  to  be  observed  on  their  part  in  regard  to  tlie 
manner  of  delivery  and  entry  of  parcels,  and  the  information 
to  be  given  to  him  of  their  contents,  the  rates  of  freight,  and 
the  like;  as,  for  example,  that  he  will  not  be  responsible  for 
goods  above  the  value  of  a  certain  sum,  unless  they  are  en- 
tered as  such  and  paid  for  accordingly.'  ^  These  are  but  the 
reasonable  regulations  which  every  man  should  be  allowed  to 
establish  for  his  business,  to  insure  regularity  and  promptness, 
and  to  properly  inform  him  of  the  responsibility  he  assumes. 
And  it  has  been  held  that  notice  derived  from  the  usage  of  the 
carrier  may  determine  the  manner  in  which  he  is  authorized 
to  make  delivery.^  Eut  beyond  the  establishment  of  such  rules 
the  force  of  a  mere' notice  cannot  extend.  Subject  to  reason- 
able regulations,  every  man  has  a  right  to  insist  that  his  prop- 
erty, if  of  such  description  as  the  carrier  assumes  to  convey, 
shall  be  transported  subject  to  the  common-law  liability.  'A 
common  carrier  has  no  right  to  refuse  goods  ofiered  for  car- 
riage at  the  proper  time  and  place,  on  tender  of  the  usual  and 
reasonable  compensation,  unless  the  owner  will  consent  to  his 
receiving  them  under  a  reduced  liability;  and  the  owner  can 
insist  on  his  receiving  the  goods  under  all  the  risks  and  respon- 

«16  Mich.  79,  110,  93  Am.  Dec.  208.        3  Farmers'  &  Mechanics"  Bank  v. 
-2  Greenl.   Ev.,  sec.  235;  Western     Cliamplain    Trans.    Co.,    16   Vt.    52; 
Trans.  Co.  v.  Newhall,  24  111.  400.  s.  c,  18  Vt.  131,  and  23  Vt.  186. 

505 


§  521.] 


CARRIERS. 


[part  V. 


sibilities  which  the  law  annexes  to  his  employment.'  ^  The 
fact  that  a  restrictive  notice  is  shown  to  have  been  actually  re- 
ceived or  seen  by  the  owner  of  the  goods  will  not  raise  a  pre- 
sumption that  he  assents  to  his  terms,  since  it  is  as  reasonable 
to  infer  that  he  intends  to  insist  on  his  rights  as  that  he  assents 
to  their  qualification;  and  the  burden  of  proof  is  upon  the  car- 
rier to  establish  the  contract  qualifying  his  liability,  if  he 
claims  that  one  exists."^ 

It  may  be  said,  however,  that  the  authorities  are  not  entirely 
harmonious  upon  this  question.  While  they  generally  hold 
that  a  general  or  published  notice  is  not  sufficient  from  which 
a  contract  limiting  liability  can  be  implied,  there  are  cases 
that  go  so  far  as  to  hold  that  when  the  notice  is  brought  home 
to  the  shipper,  and  the  course  of  business  is  well  understood, 
and  has  been  often  acted  upon  without  question  by  the  shipper, 
in  such  case  it  may  be  binding  upon  the  shipper.^ 

§  521.  Further  consideration. —  By  way  of  summing 

up  the  question  of  limitation  of  liability  by  general  notice  and 


iCole  V.  Goodwin,  19  Wend.  251; 
Jones  V.  Voorheis,  10  Ohio,  145;  Ben- 
nett V.  Button,  10  N.  H.  487;  N.  J. 
Nav.  Co.  V.  Merchants'  Bank,  6  How. 
344:  Moses  v.  Boston  &  M.  R.  Co.,  24 
N.  H.  71.  Kimball  v.  Rutland,  etc.  Co., 
26  Vt.  256;  Slocum  v.  Fairchild,  7 
Hill,  292;  Dorr  v.  N.  J.  Steam  Navi- 
gation Co,,  4  Sandf.  (N.  Y.)  136,  11  N. 
Y.  485;  Mich.  Cent.  R.  Co.  v.  Hale,  6 
Mich.  243.  Above  cited  in  the  opin- 
ion of  Cooley,  J. 

2  N.  J.  Steam  Nav.  Co.  v.  Merchants' 
Bank,  6  How.  344. 

3BiDgham  v.  Rogers.  6  W.  &  S. 
(Pa.)  49.5.  This  doctrine  was  ques- 
tioned in  Laing  v.  Colder,  8  Pa.  St. 
479,  where  the  judge  in  delivering 
the  opinion  says:  "Were  the  ques- 
tion an  open  one  in  Pennsylvania,  I 
should  for  one  unhesitatingly  follow 
them  (meaning  contrary  authorities) 
in  repudiating  a  principle  which 
places  the  bailor  absolutely  at  the 
mercy  of  the  carrier,  whom  in  a  vast 
majority  of  instances  he  cannot  but 
choose  to  employ."  See  also  Pa. 
Cent.  R.  Co.  v.  Schwarzenberger,  45 


Pa.  St.  208:  Farnhamv.  Camden,  etc. 
R,  Co.,  55  Pa.  St.  53.  It  has  been 
held  in  Kentucky  "that  public  notice 
given  by  the  carrier  and  brought 
home  to  the  knowledge  of  the  ship- 
per, enters  into  the  contract  of  af- 
freightment so  far  as  the  carrier  has 
right  to  impose  terms,  etc."  Orndorff 
V.  Adams  Express  Co.,  3  Bush  (Ky.), 
195.  In  North  Carolina  it  has  been 
held  that  notice  brought  to  the 
knowledge  of  the  owner  will  reason- 
ably qualify  the  liability  of  the  car- 
rier in  certain  cases,  as,  that  they 
will  not  be  liable  for  glass  in  a  box 
or  articles  of  unusual  value  unless 
informed  of  the  facts.  Smith  v.  N. 
Car.  R.  Co.,  64  N.  C.  235.  And  in 
Maine,  that  notice  brought  home  to 
the  owner  of  goods  at  the  time  of  the 
delivery  for  shipment,  if  expressly  or 
impliedly  assented  to,  will  restrict 
liability.  Fillebrown  v.  Grand  Trunk 
R  Co.,  55  Me.  462;  Little  v.  Boston, 
etc.  Co.,  66  Me.  239.  See  the  strong 
language  of  Cowen,  J.,  in  Cole  v. 
Goodwin,  19  Wend,  260. 


506 


en.  VIII.]  CONTRACTS TRANSPORTATION    OF    GOODS.  [§522. 

drawing  conclusions  from  what  has  already  been  said,  it  may 
be  observed:  First,  the  contract  for  carriage  as  to  the  liability 
of  the  carrier  is  fixed  by  the  common  law  except  as  modified 
by  statute  or  contract.  Second,  the  shipper  may  insist  that 
there  shall  be  no  modifications,  when  there  are  no  statutes  pro- 
viding for  it,  and  that  the  carrier  shall  transport  his  freight  as 
an  insurer.  Third,  no  modification  can  be  made  by  the  mere 
act  of  the  carrier  alone.  Fourth,  the  contract  modifying  the 
liability,  to  be  valid,  must  have  a  consideration  to  support  it. 

With  these  settled  principles  of  the  law  as  to  modifying  the 
common-law  liability  of  the  carrier,  what  conclusion  can  be 
drawn  as  to  the  effect  of  a  general  notice?  If  the  notice  is 
posted  up  in  conspicuous  places  or  published  and  circulated  ' 
through  newspapers  or  other  public  means  and  made  as  public 
as  possible,  it  could  not  possibly  partake  of  the  requisites  sug- 
gested. If  this  sort  of  notice  limits  the  liabilitj",  the  shipper 
would  be  deprived  of  his  right  to  ship  his  goods  so  as  to  take 
advantage  of  the  common-law  liability  of  the  carrier.  It  would 
deprive  him  of  that  right  which  we  have  seen  belongs  to  him, 
to  insist  that  there  should  be  no  modification  of  liability.  The 
carrier  could  make  his  own  terms,  and,  without  consulting  the 
shipper,  could  determine  his  own  liability  to  suit  himself;  there 
need  be  no  consideration  and  no  assent.  To  hold  that  such  a 
notice  could  modify  liability  would  be  to  sweep  away  every 
principle  that  has  been  grounded  by  the  prevailing  authorities 
and  decisions  in  this  country. 

§  522.  General  notice  written  or  printed  upon  the 

receipt  or  bill  of  lading. —  The  authorities  do  not  seem  to 
agree  as  to  the  extent  of  limiting  the  liability  of  the  carrier  by 
a  printed  or  written  notice  upon  the  receipt  or  way-bill  given 
the  shipper  at  the  time  of  delivering  the  goods.  There  is  a 
distinction  made  by  the  courts  as  to  stipulations  written  in  the 
bill  of  lading  limiting  the  liability  and  signed  by  the  carrier 
or  his  agent,  and  a  general  notice  written  or  printed  upon  the 
receipt  or  upon  the  bill  of  lading  and  not  signed  by  any  person. 
There  are  certain  facts  which  should  be  taken  into  considera- 
tion with  reference  to  the  bill  of  lading.  First,  it  is  generally 
understood  that  the  shipper,  by  the  bill  of  lading,  seeks  to  limit 
his  liability;  and  further,  it  is  understood  that  there  is  a  place 
on  or  part  of  the  bill  of  lading  where  the  language  limiting  the 

507 


I  522.]  CARKIERS.  [part   V. 

liability  is  generally  written  or  printed,  so  that  it  may  be  said 
that  the  shipper  would  look  to  this  part  of  the  bill  of  lading 
for  the  stipulations  limiting  the  liability,  and  when  they  are 
written  here  and  signed  by  the  carrier,  or  the  agent  of  the  car- 
rier, and  delivered  to  theshipper  at  the  time  the  goods  are  de- 
livered for  transportation,  and  the  shipper  receives  the  bill,  he 
is  presumed  to  have  accepted  these  stipulations  and  to  under- 
stand the  contents  of  the  bill.     But  it  is  very  different  when  the 
instrument  delivered  is  a  receipt  with  a  general  notice  written 
or  printed  upon  it,  not  signed,  or  when  it  is  a  general  notice 
printed  upon  the  contract  or  the  bill  of  lading  and  not  in  a  con- 
spicuous place,  and  not  accepted  or  assented  to  by  the  shipper. 
But  as  to  these  notices  it  may  be  said  that  if  they  are  notices 
printed  upon  the  receipt  or  the  wa\"-bill  in  such  a  way  and  so  con- 
spicuous as  to  bring  the  contents  home  to  the  shipper,  and  the 
notice  is  as  to  the  receiving  of  the  goods  for  shipment,  and  is  rea- 
sonable as  to  the  value  of  the  goods,  and  the  amount  for  which 
the  company  will  be  held  liable,  such  like  cases,  it  seems,  will 
be  held  to  be  valid.     It  is  upon  the  theory  that  the  carrier  has 
the  right  to  know  the  character  of  the  freight  that  is  being 
presented  for  shipment.     Is  it  gunpowder  or  dynamite  or  dan- 
gerous explosives  that  are  sought  to  be  shipped?     If  so,  the  car- 
rier may  fix  his  terms  for  receiving  it,  and  may  refuse  to  accept 
it  under  the  common-law  liability.  Are  the  packages  what  they 
appear  to  be,  or  is  there  a  reasonable  suspicion  that  they  con- 
tain goods  secreted  w^ithin  them  of  very  much  greater  value? 
Are  they  goods  as  they  appear,  of  little  value,  or  do  they  con- 
tain, hidden  from  view  among  other  goods,  bank  bills,  gold 
coin,  diamonds,  or  such  like  articles  as  would  very  greatly  in- 
crease the  rate  of  shipment  and  the  responsibility  of  the  car- 
rier?   In  such  cases  there  can  be  no  doubt  but  that  the  carrier 
has  the  right  to  know  the  responsibility  he  is  assuming;  and 
along  this  line,  and  by  w^ay  of  fixing  his  responsibility  in  such 
cases,  he  may  give  notice  to  the  shipper  of  certain  requirements 
which  must  be  complied  with,  which  will  be  binding  and  the 
law  enforce.  But  if  the  notice  refers  to  the  liability  of  the  car- 
rier in  transporting  the  goods,  where  there  is  no  fraud  or  de- 
ception in  the  delivering  or  the  receiving  of  them  by  the  car- 
rier, such  liabilit}'' cannot  be  limited  by  notice  upon  the  receipt 
or  bill  of  lading  unless  assented  to  by  the  shipper. 

508 


CII.  YIII.]  CONTRACTS  —  TEANSPOETATION    OF    GOODS.  [§522. 

It  was  said  by  the  supreme  court  of  New  Hampshire  in 
Hoses  V.  Boston,  etc.  R.  Co.:^  "We  do  not  mean  to  hold  that 
there  are  no  cases  in  which  the  carrier  may,  by  notice,  define 
and  qualify  his  responsibility.  It  may  be  quite  reasonable  that 
he  should  insist  on  proper  information  as  to  the  value  of  the 
article  which  he  carries.  This  would  not  seem  to  be  any  in- 
fringement upon  the  principle  of  the  ancient  rule.  He  must 
have  a  right  to  know  what  it  is  that  he  undertakes  to  carr}^ 
and  the  amount  and  extent  of  his  risk.  We  can  see  nothing 
that  ought  to  prevent  him  from  requiring  notice  of  the  value 
of  the  commodity  delivered  to  him,  when,  from  its  nature,  or 
the  shape  and  condition  in  which  he  receives  it,  he  may  need 
the  information;  nor  why  he  should  not  insist  on  being  paid  in 
proportion  to  the  value  of  the  goods,  and  the  consequent 
amount  of  his  risk."  x\nd  in  Railroad  Co.  v.  Mfg.  Co?  the  su- 
preme court  of  the  United  States,  in  an  opinion  by  Mr.  Justice 
Davis,  discusses  this  question,  after  quoting  with  approval 
from  JSf.  J.  Steam  Navigation  Co.  v.  Merchants'  Banh^  and 
says:  "These  considerations  against  the  relaxation  of  the  com- 
mon-law responsibility  by  public  advertisements  apply  with 
equal  force  to  notices  having  the  same  object,  attached  to  re- 
ceipts given  by  carriers  on  taking  the  property  of  those  who 
employ  them  into  their  possession  for  transportation.  Both 
are  attempts  to  obtain  by  indirection  exemption  from  burdens 
imposed  in  the  interests  of  trade  upon  this  particular  business. 
It  is  not  only  against  the  policy  of  the  law,  but  a  serious  in- 
jury to  commerce,  to  allow  the  carrier  to  say  that  the  shipper 
of  merchandise  assents  to  the  terms  proposed  in  a  notice, 
whether  it  be  general  to  the  public  or  special  to  a  particular 
person,  merely  because  he  does  not  expressly  dissent  from  them. 
If  the  parties  were  on  an  equality  in  their  dealings  with  each 
other  there  might  be  some  show  of  reason  for  assuming  acqui- 
escence from  silence,  but  in  the  nature  of  the  case  this  equality 
does  not  exist,  and,  therefore,  every  intendment  should  be 
made  in  favor  of  the  shipper  when  he  takes  a  receipt  for  his 
property,  with  restrictive  conditions  annexed,  and  says  noth- 
ing, that  he  intends  to  rely  upon  the  law  for  the  security  of 
iiis  rights.     It  can  readily  be  seen,  if  the  carrier  can  reduce 

1 24  N.  II.  71,  9  L.  R.  A.  455.  2  16  Wall.  (U.  S.)  318.  3g  How.  344. 

509 


§  522.J 


CARKIEES. 


[PAKT   V. 


bis  liability  in  the  way  proposed,  he  can  transact  business  on 
any  terms  he  chooses  to  prescribe.  The  shipper,  as  a  general 
thing,  is  not  in  a  condition  to  contend  with  him  as  to  terms, 
nor  to  wait  the  result  of  an  action  at  law  in  case  of  refusal  to 
carr}''  unconditionally.  Indeed  such  an  action  is  seldom  re- 
sorted to  on  account  of  the  inability  of  the  shipper  to  delay 
sending  his  goods  forward.  The  law  in  conceding  to  carriers 
the  liability  to  obtain  any  reasonable  qualifications  as  to  their 
responsibility  by  express  contract  has  gone  as  far  in  this  direc- 
tion as  public  policy  will  allow.  To  relax  still  further  the 
strict  rules  of  common  law  applicable  to  them,  by  presuming 
acquiescence  in  the  conditions  on  which  they  propose  to  carry 
freight  when  they  have  no  right  to  impose  them,  would,  in  our 
opinion,  work  great  harm  to  the  business  community.  The 
weight  of  authority  is  against  the  validity  of  the  kind  of  no- 
tices we  have  been  considering.  And  many  of  the  courts  that 
have  upheld  them  have  done  so  with  reluctance,  but  felt  them- 
selves bound  by  previous  decisions."  ^ 


lYork  Co.  V.  Cent.  R.  Co.,  3  Wall. 
107,  113.  "He  cannot  screen  him- 
self ffom  liability  by  any  general  or 
special  notice,  nor  can  h»  coerce  the 
owner  to  yield  assent  to  a  limitation 
of  a  responsibility  by  making  exor- 
bitant charges  when  such  assent  is 
refused."  The  supreme  court  of  Illi- 
nois, in  Merchants'  Dispatch,  etc.  Co. 
V.  Furthmann,  149  III.  60,  where 
there  was  written  upon  the  back  of 
the  receipt  for  the  goods  delivered 
the  following  notice:  "The  within 
mentioned  goods  to  be  forwarded 
under  the  following  conditions," 
after  noting  a  number  of  conditions, 
say:  "If  the  contention  of  appellant 
is  correct,  the  paper  of  May  4  is  a  re- 
ceipt for  the  goods,  with  a  contract 
to  carry,  upon  certain  conditions 
printed  on  the  back  of  it.  signed  by 
no  one.  We  are  clearly  of  the  opinion 
that  such  a  receipt  should  not  be 
given  the  legal  effect  of  a  special 
contract  limiting  a  public  carrier's 
common-law  liability.  No  good  rea- 
son can  be  shown  why,  if  the  inten- 


tion is  to  so  contract  with  the  shipper 
in  good  faith,  the  conditions  should 
not  be  embodied  in  the  contract  and 
properly  signed,  as  was  done  in  the 
bill  of  lading  dated  May  6,  and  this 
we  understand  to  be  in  harmony 
with  the  decisions  in  New  York. 
There  the  court  of  appeals  has,  as  be- 
fore stated,  he'd  that  where  the  con- 
ditions are  embodied  in  the  receipt 
or  bill  of  lading,  as  in  Belger  v.  Dins- 
more,  51  N.  Y.  166,  the  acceptance  of 
the  paper  is  conclusive  evidence  of 
the  fact  that  the  shipper  knew  its 
contents  and  assented  thereto:  but 
we  have  been  able  to  find  no  decision 
of  that  court  giving  such  a  construc- 
tion to  a  mere  i-eceipt  calling  atten- 
tion to  conditions  on  the  back  of  it. 
On  the  contrary,  it  has  there  been 
uniformly  held  that  the  liability 
cannot  be  restricted  or  limited  by 
notice,  whether  brought  home  to  the 
shipper  or  not."  In  Indianapolis,  etc. 
Co.  V.  Cox,  29  Ind.  360.  95  Am.  Dec. 
640:  "He  may  limit  his  responsibil- 
ity by  notice  if  brought  home  to  the 


510 


CH.  Vin.]  CONTRACTS TKANSPOKTATION    OF    GOODS. 


[g  523. 


§  523.  Representations  of  the  shipper,  fraudulent  or  oth- 
erwise.—  The  shipper  is  under  as  binding  an  obligation  as  the 
carrier  to  deal  fairly  and  honestl}^  in  making  the  shipment. 
If  his  attention  is  called  to  the  matter  of  value  or  contents  of 
the  package  he  must  state  truthfully  to  the  shipper  with  refer- 
ence to  these  matters,  and  if  he  does  not,  or  if  he  consents  to 
the  shipping  of  the  freight  upon  a  statement  of  a  limited  value 
for  the  purpose  of  receiving  a  lesser  rate,  in  case  of  loss  or  in- 
jury to  the  freight  he  will  be  estopped  from  claiming  that  the 
goods  are  of  greater  value  than  the  amount  stated  at  the  time 
of  their  shipment.  So  it  follows  that  if  the  statement  as  to 
value,  or  the  statement  as  to  contents  of  packages,  be  fraudu- 
lently made  b}'  deceit  and  misrepresentation  for  the  purpose 


consignor  and  assented  to  clearly 
and  unequivocally  by  him."  Buck- 
land  V.  Adams  Exp.  Co.,  97  Mass.  124, 
93  Am.  Dec.  68.  But  this  assent  is 
not  to  "  be  inferred  from  the  mere 
fact  that  knowledge  of  such  notice 
on  the  part  of  the  owner  or  consignor 
is  shown.  The  evidence  niust  show 
that  the  terms  on  which  the  carrier 
proposed  to  carry  the  goods  were 
adopted  as  the  contract  between  the 
parties."  The  burden  is  on  the  car- 
rier to   show  a  restricted  liability, 


contract,  has  declared  that  if  not  ap 
prised  of  the  value  of  the  thing  to  be 
carried,  and  paid  for  his  risk  accord- 
ingly, he  will  be  liable  only  to  a  cer- 
tain extent,  the  shipper,  if  he  would 
hold  him  in  case  of  loss  beyond  that 
limit,  must  inform  the  carrier, 
whether  the  inquiry  be  made  of  him 
or  not,  of  the  value  of  which  he 
wishes  him  to  assume  the  risk,  and 
imust  compensate  him  accordingly. 
And  some  of  the  cases  have  gone  so 
far  as  to  assert  that  where  the  liabil- 


and  that  a  notice  to  that  effect  was  Hty  of  the  carrier  is  thus  condition- 


received  or  seen  by  the  shipper  is 
not  sufficient;  his  assent  must  be 
shown.  McMillan  v.  Mich.  etc.  R. 
Co..  16  Mich.  79,  93  Am.  Dec.  208;  30 
Am.  &  Eng.  R.  Cases,  12.  note;  37 
Am.  &  Eng.  R.  Cases,  477,  note.  See 
also  article  by  C.  C.  Binney,  27  Am. 
Law  Reg.  (N.  S.)  628,  note;  Hutch,  on 
Car.,  sec.  256.  "  However  this  may 
be,  when  the  knowledge  of  such  a 
regulation  of  the  carrier  in  the  con- 
duct of  his  business  has  come  to  the 
shipper  only  by  notice  directly  con- 
veyed to  him  or  by  a  previous  course 
of  dealing,  there  is  no  question  that 
when  the  carrier,  in  the  very  con- 
tract by  which  he  undertakes  to 
(;arry  the  goods,  whether  it  be  in  the 
form  of  a  receii)t  accepted  by  the 
shipper,  or  any  other  form  of  express 


ally  limited,  if  the  owner  of  the 
goods  of  greater  value  than  would 
be  ordinarily  indicated  by  the  box 
or  package  in  which  they  are  con- 
tained, delivers  thein  to  the  carrier 
without  any  notice  of  their  extraor- 
dinary value  and  without  paying 
charges  on  them  commensurate 
tlierewith,  any  attempt,  in  case  of 
their  loss,  to  in:ipose  a  liability  upon 
him  beyond  the  limit  prescribed  in 
the  contract  would  be  an  attempted 
fraud  upon  him,  and  that  even  if  the 
loss  were  shown  to  have  been  the 
result  of  negligence,  unless  it  were 
of  so  gross  a  character  as  to  be  tan- 
tamount to  a  misfeasance,  the  car- 
rier would  be  protected  by  the  terms 
of  his  receipt." 


511 


§  524.]  CAEKIEES.  [part   V. 

of  obtaining  a  less  rate  for  their  transportation,  he  will  at  least 
be  held  to  have  assented  to  the  amount  stated  at  the  time  of 
the  shipment;  and  if  by  reason  of  his  deceit,  misrepresentation 
and  falsehood  goods  are  taken  that  are  dangerous  and  that  re- 
quire particular  care  in  transporting  them,  and  because  of  the 
deception  of  the  shipper  injurj'  results  to  the  carrier  by  reason 
of  explosion  or  other  damage,  in  such  case  the  shipper  would 
be  liable  to  the  carrier.^ 

§  524.  When  the  contract  limiting  liability  inures  to  the 
heneflt  of  the  connecting  carrier. —  Whether  the  contract 
limiting  the  common-law  liability  inures  to  the  benefit  of 
a  connecting  carrier  depends,  it  seems,  upon  the  terras  and 
extent  of  the  contract  for  shipment.  If  the  contract  is  for 
through  transportation,  it  is  generally  conceded  that  it  will 
inure  to  the  benefit  of  all  the  connecting  carriers,  but  if  it  is 
simply  to  carry  goods  over  the  line  of  road  of  the  first  carrier 
and  there  deliver  them  to  the  connecting  carrier,  the  stipula- 
tions limiting  the  liability  can  only  benefit  the  first  carrier  — 
the  party  with  whom  the  contract  was  made,  xlnd  where  the 
contract  for  shipment  was  to  transport  and  deliver  goods  at  a 
point  beyond  the  terminus  of  its  own  line,  and  contained  the 
foUowino^  clause:  "Unavoidable  accidents  of  the  railroad  and 
of  fire  in  the  depot  excepted,"  it  was  held  "  that,  in  the  absence 
of  proof  of  any  other  or  new  contract,  this  exception  would  be 
held  to  extend  to  every  other  connecting  carrier  who  shared 
the  freight  specified  in  the  bill  of  lading,  and  that  in  an  action 
against  sucli  connecting  carrier,  the  goods  having  been  lost 
while  in  its  possession,  he  could  claim  the  benefit  of  it."'  But 
where  the  contract  was  with  the  common  carrier  for  an  agreed 
compensation  to  carry  the  goods  to  the  terminus  of  his  road, 

1  Railroad  Co.  v.  Fralotf,  100  U.  S.  whereby  a  responsibility  is  imposed 

24.     "As  a  condition  precedent  to  its  upon  them   beyond  what   they  are 

transportation,  they  may  require  in-  bound  to  assume  in  consideration  of 

formation  from  him  as  to  its  value,  the  ordinary  fare  charged  for  the 

and  demand  extra  compensation  for  transportation  of  the  person."  Steers 

any  excess    beyond  that  which   he  v.  Liverpool,  etc.  S.  S.  Co.,  57  N.  Y. 

may  reasonably  demand  to  be  trans-  1;  Hill  v.  Railroad  Co.,  144  Mass.  284: 

ported  as  baggage  under  the  contract  Rosenfield  v.  Railroad  Co.,  103  Ind. 

to  carry  the  person.     They  may  be  121. 

discharged  from  liability  for  its  full        ^jjaghee  v.  Camden,  etc.  R.  Ca,  45 

value  if  he  by  any  device  or  artifice  N.  Y.  514. 
evades    inquiry    as    to    such    value 

512 


CH.  VIII.]  CONTRACTS TRANSPORTATION    OF    GOODS.  [§  525. 

and  then  deliver  them  to  another  carrier,  it  was  held  that  "  no 
authority  results  from  tlie  relation  or  from  the  contract  em- 
powering him  to  enter  into  a  special  contract  on  behalf  of  the 
owner  with  the  next  carrier  limiting  or  restricting  the  liability 
of  the  latter.  The  whole  duty  of  the  first  carrier  terminates 
with  the  delivery  of  the  goods  to  the  second,  and  the  common- 
law  liability  of  the  latter  attaches  at  once  by  necessary  impli- 
cation upon  the  receipt  thereof."^  The  court  in  the  opinion 
using  this  language:  " Carriers  who  are  not  named  in  a  con- 
tract for  tlie  carriage  of  goods  and  who  are  not  formal  parties 
to  it  may,  under  certain  circumstances,  have  the  benefit  of  it. 
Such  is  the  case  when  a  contract  is  made  by  one  of  several  car- 
riers upon  connecting  lines  or  routes  for  the  carriage  of  prop- 
erty over  the  several  routes  for  an  agreed  price  by  authority, 
express  or  implied,  of  all  the  carriers.  So,  too,  in  the  absence 
of  any  authority  in  advance,  or  any  usage  from  which  an  author- 
ity might  be  inferred,  a  contract  by  one  carrier  for  the  trans- 
portation of  goods  over  his  own  and  connecting  lines,  adopted 
and  acted  upon  by  the  other  carriers,  would  inure  to  the  benefit 
of  all  thus  ratifying  it,  and  performing  service  under  it.  But  in 
such  and  the  like  cases  the  contract  has  respect  to  and  provides 
for  the  services  of  the  carriers  upon  the  connecting  routes." 

§  525.  Limiting  liability  in  England  —  Especially  by  no- 
tice.—  From  a  very  early  period  the  English  courts  recognized 
that  carriers  might  limit  their  liability  by  contract  or  by  no- 
tice, and  by  notice  which  was  very  general  in  its  character. 
Indeed,  it  may  be  said  the  English  courts,  from  the  decision  of 
the  case  of  Gihhons  v.  Paynton "-  in  1769  down  to  the  time 
Avhen  the  carrier's  statute  passed  the  parliament  in  1830,  al- 
lowed the  carrier  great  latitude  by  way  of  shielding  himself 
from  liability  by  general  notice.  So  extremely  liberal  did  the 
courts  become  in  extending  their  privileges  to  carriers  that 
Lord  Ellenborough,  in  Doions  v.  Ft'omont  *  in  1S14,  said:  "  I  am 
very  sorry  for  the  convenience  of  trade  that  carriers  have  been 
allowed  to  limit  their  common-law  responsibility,  and  some 

1  Babcock  v.  L.  S.  etc.  R.  Co.,  49  3  4  Camp.  40.  So  excellent  a  his- 
N.  Y.  491,  citing  Root  v.  Great  West-  tory  of  the  English  decisions  and  acts 
ern  R.  Co.,  4-5  N.  Y.  524,  and  cases  is  given  in  Fish  v.  Chapmen,  2  Ga. 
cited;  Redfield  on  Carriers,  sec.  181,  349.  46  Am.  Dec.  393,  that  I  earnestly 
and  cases  cited  in  note  9;  Hutch,  on  commend  its  perusal  to  the  student 
Carriers,  sec.  271.  of  tliis  subject. 

2  4  Burr.  2298. 

33  513 


§  525.]  CARRIERS.  [part    V. 

legislative  measure  upon  the  subject  will  soon  become  neces- 
sary, but  I  feel  myself  bound  by  the  decisions,  that  such  no- 
tices, in  cases  where  they  apply,  constitute  a  special  contract 
between  the  parties."  In  1830  the  statute  commonly  known 
as  the  Carrier's  Act  passed  parliament.  The  first  section  of 
that  act  enacts  "  that  no  mail  contractorj  stage-coach  proprietor, 
or  other  common  carrier  by  land,  for  hire,  shall  be  liable  for 
the  loss  of,  or  injury  to,  any  article  or  articles  or  property  of 
the  descriptions  following:  (that  is  to  say)  gold  or  silver  coin 
of  this  realm  or  of  any  foreign  state,  or  any  gold  or  silver  in  a 
manufactured  or  unmanufactured  state,  or  any  precious  stones, 
jewelry,  watches,  clocks  or  time-pieces  of  any  description, 
trinkets,  bills,  notes  of  the  governor  and  company  of  the  banks 
of  England,  Scotland  and  Ireland,  respectively,  or  of  any  other 
bank  in  Great  Britain  or  Ireland,  orders,  notes  or  securities  for 
payment  of  money,  English  or  foreign  stamps,  maps,  writings, 
title-deeds,  paintings,  engravings,  pictures,  gold  or  silver  plate 
or  plated  articles,  glass,  china,  silks  in  a  manufactured  or  un- 
manufactured state,  and  whether  wrought  up  or  not  wrought 
up  with  any  other  materials,  furs  or  lace,  or  any  of  them,  con- 
tained in  any  parcel  or  package  which  shall  have  been  deliv- 
ered, either  to  be  carried  for  hire  or  to  accompany  the  person 
of  any  passenger  in  any  mail  or  stage-coach  or  other  public 
conveyance,  Avhen  the  value  of  such  article  or  articles  or  prop- 
erty aforesaid,  contained  in  such  parcel  or  package,  shall  exceed 
the  sum  of  ten  pounds,  unless  at  the  time  of  the  delivery  thereof 
at  the  office,  warehouse  or  receiving-house  of  such  mail  con- 
tractor, stage-coach  proprietor  or  other  common  carrier,  or  to 
his,  her  or  their  bookkeeper,  coachman,  or  other  servant,  for 
the  purpose  of  being  carried  or  of  accompanying  the  person  of 
any  passenger  as  aforesaid,  the  value  and  nature  of  such  arti- 
cle or  articles  or  property  shall  have  been  declared  by  the  per- 
son or  persons  sending  or  delivering  the  same,  and  such  in- 
creased charge  as  hereinafter  mentioned,  or  an  engagement  to 
pay  the  same,  be  accepted  by  the  person  receiving  such  parcel 
or  package."  The  second  section  provides  that  "  when  any 
parcel  or  package  containing  any  of  the  articles  above  specified 
shall  be  so  delivered,  and  its  value  and  contents  declared  as 
aforesaid,  and  such  value  shall  exceed  the  sum  of  ten  pounds,  it 
shall  be  lawful  for  such  contractors,  stage-coach  proprietors 
and  other  common  carriers  to  demand  and  receive  an  increased 

514 


i 


CIT.  VIII.]  CONTKACTS TKANSPORTATION    OF    GOODS.  [§  526. 

rate  of  charge,  to  be  notified  by  some  notice  affixed  in  legible 
characters  in  some  public  and  conspicuous  part  of  the  office, 
warehouse  or  other  receiving-house  where  such  parcels  or  pack- 
ages are  received  by  them  for  the  purpose  of  conveyance,  stat- 
ing the  increased  rates  of  charge  required  to  be  paid  over  and 
above  the  ordinary  rate  of  carriage  as  a  compensation  for  the 
greater  risk  and  care  to  be  taken  for  the  safe  conveyance  of 
such  valuable  articles;  and  all  persons  sending  or  delivering 
parcels  or  packages  containing  such  valuable  articles  as  afore- 
said at  such  office  shall  be  bound  by  such  notice  without  fur- 
ther proof  of  the  same  having  come  to  their  knowledge." ' 

Following  this  statute  was  the  act  of  parliament  passed  in 
1854,  known  as  the  Kailway  and  Canal  Traffic  Act,  which 
modified  the  act  of  1830  as  applied  to  railways  and  canal 
traffic.  The  seventh  section  of  the  act,  among  other  things, 
provides  "that  railway  companies  are  liable  for  the  loss  or  in- 
jury done  to  goods  by  the  neglect  or  default  of  the  company, 
or  its  servants,  notwithstanding  any  notice  limiting  their  lia- 
bility, provided  that  they  may  make,  by  special  contract  as- 
sented to  and  signed  by  the  consignor,  any  conditions  which 
are  adjudged  by  the  court  to  be  just  and  reasonable.  The  sig- 
nature of  the  consignor  or  his  agent  is  essential  to  the  validity 
of  the  contract."  "- 

§  526.  The  result  of  this  act. —  Upon  these  acts  rest 

the  adjudicated  cases  in  England.  It  will  be  noticed  that  the 
substance  of  the  provisions  touching  this  subject  is  that  what 
is  "  just  arid  reasonable  "  is  to  be  submitted  to  the  courts.  Very 
many  decisions  of  the  courts  might  be  cited,  but  suffice  it  to 
say  that  an  examination  of  the  adjudications  will  discover  that 
the  courts  have  virtually  held  that  it  is  "just  and  reasonable" 
for  the  carrier  to  limit  his  liability  to  almost  any  extent  ex- 
cept as  to  his  own  negligence  or  tiiat  of  his  servants.''  While 
the  courts  do  not  say  this,  or  state  it  in  their  opinions,  it  is 
virtually  the  substance  of  their  decisions. 

1  The  above  was  stated  by  Story  on  Co  wen,  C.  J.,  gives  a  full  discussion 

Bailm.,  sec.  554a.   See  English  notes,  of  the  several  acts  and  decisions. 

5   Eng.    Rul.   Cases,  337,  where  the  ''^x\ldrich  v,  (Jreat  Western  R.  Co. 

statute  is  given  and  very  many  cases  (1864),  15  Com.  B.  (N.  S.)  582;  5  Eng. 

cited  and  discussed.     See  also  notes  Rul.  Cases,  340. 

to  section  554  et  seq.,  Story  on   Bail-  ^See  cases  cited  in  5  Eng.  Rul.  Cas. 

ments,  for  a  general  discussion;  Cole  340.  etc.;  Hutch,  on  Carriers,  §  234, 

V.   Goodwin,   19  Wend.   251,   where  and  notes. 

515 


CHAPTER  IX. 


LIABILITY  OF  THE  COMMON  CARRIER  (CONTINUED)— CONNECT- 
ING CARRIERS. 


§  527.  Liable  only  over  his  own  line 
except  when  contract  is  for 
further  liability. 

528.  If  there  is  no  contract  as 

to  liability  beyond  its  own 
line. 

529.  The  English  rule. 

530.  Decisions  of  states  not  harmo- 

nious. 

531.  Some  conditions  and  relations 

from    which    contract    for 


through  shipnaent  may  be 
implied. 

532.  Who  are  connecting  carriers. 

533.  The    relations    between    tlie 

shipper,  the  initial  carrier 
and  the  connecting  carrier. 

534.  The  duty  of  the  connecting 

carrier. 

535.  Authority  to  make  contract 

binding  connecting  carriers. 

536.  Actions  for  loss  or  damage. 


§  527.  Liable  only  over  his  own  line  except  when  con- 
tract is  for  further  liability. — ^  Primarily  the  carrier's  liabil- 
ity only  extends  to  shipments  over  his  own  line,  and,  if  he  is  to  be 
held  liable  for  loss  or  injury  beyond  his  line,  his  liability  can 
only  be  made  out  by  proof  of  a  contract,  either  express  or  im- 
plied, whereby  he  assumes  such  liability.  Such  a  contract  may 
be  an  express  written  contract,  assuming  liability  over  con- 
necting lines  and  to  the  termination  of  the  shipment,  and,  in 
such  case,  like  all  written  contracts,  it  must  be  construed  by 
the  court;  or  it  may,  as  said,  be  an  implied  contract — implied 
from  all  the  facts  and  circumstances.  As  where  the  goods  are 
received  by  the  carrier  marked  through  to  their  destination, 
and  a  through  freight  rate  made  and  collected,  the  initial  car- 
rier havmg  through  shipping  arrangements  with  the  connect- 
ing carrier  over  whose  line  the  goods  are  to  be  transported, 
a  contract  for  through  shipment  by  the  initial  carrier  would 
be  implied.  In  all  cases  where  the  contract  is  implied  from 
facts  shown  upon  the  trial,  it  is  a  question  for  the  jury  to  de- 
termine whether  a  contract  was  made  which  bound  the  initial 
carrier  throughout  the  journey  to  the  destination  of  the  goods. 

§  528.  If  there  is  no  contract  as  to  liability  beyond 

its  own  line. —  In  the  absence  of  a  contract,  express  or  im- 
plied, fixing  the  liability  beyond  its  own  line,  the  carrier  has  a 

516 


CH.  IX.]  CONNECTING    CARRIERS.  [§  528. 

duty  cast  upon  him  by  the  law  to  safely  deliver  the  goods  into 
the  possession  of  the  first  connecting  carrier.  That  duty  will 
not  be  fulfilled  by  simply  carrying  the  goods  to  the  end  of  its 
own  line  and  placing  them  in  a  warehouse.  The  fact  that  they  are 
marked  through  is  enough  to  make  it  incumbent  upon  initial  car- 
rier to  properly  deliver  them  to  the  connecting  carrier.  The  mere 
taking  of  the  goods  for  shipment  by  the  initial  carrier,  marked 
to  a  destination  beyond  its  own  line,  is  not  a  sufficient  fact  from 
which  an  implied  contract  to  ship  to  destination  and  assume  lia- 
bility will  be  inferred.  It  is  simply  a  fact,  with  others,  to  be  sub- 
mitted to  the  jury  upon  such  a  contention,  but  of  itself  alone  it  is 
not  enough.  The  supreme  court  of  the  United  States  have  very 
clearly  stated  the  prevailing  rule  in  this  country  in  such  like 
cases.  The  court  say :  "A  railroad  company  is  a  carrier  of  goods 
for  the  public,  and,  as  such,  is  bound  to  carry  safely  whatever 
goods  are  intrusted  to  it  for  transportation  within  the  course  of 
its  business  to  the  end  of  its  route,  and  there  deposit  them  in  a 
suitable  place  for  their  owners  or  consignees.  If  the  road  of 
the  company  connects  with  other  roads,  and  goods  are  received 
for  transportation  beyond  the  termination  of  its  own  line,  there 
is  superadded  to  its  duty  as  a  common  carrier  that  of  a  forwarder 
by  the  connecting  line;  that  is,  to  deliver  safely  the  goods  to 
such  line  —  the  next  carrier  on  the  route  beyond.  This  forward- 
ing duty  arises  from  the  obligation  implied  in  taking  the  goods 
for  the  point  beyond  its  own  line.  The  common  law  imposes 
no  greater  duty  than  this.  If  more  is  expected  from  the  com- 
pany receiving  the  shipment,  there  must  be  a  special  agree- 
ment for  it.  This  is  the  doctrine  of  this  court,  although  a 
difi'erent  rule  of  liability  is  adopted  in  England  and  in  some 
of  the  states.  As  was  said  in  Railroad  Co.  v.  Mantifactur- 
ing  Co.^  '  It  is  unfortunate  for  the  interests  of  commerce 
that  there  is  an}'^  diversity  of  opinion  on  such  a  subject,  es- 
pecially in  this  country;  but  the  rule  that  holds  the  carrier 
only  liable  to  the  extent  of  his  own  route,  and  for  the  safe 
storage  and  delivery  to  the  next  carrier,  is  in  itself  so  just  and 
reasonable  that  we  do  not  hesitate  to  give  it  our  sanction.' 
This  doctrine  was  approved  in  the  subsequent  case  of  B.ail- 
road  Co.  v.  Pratt^  although  the  contract  there  was  to  carry 
through  the  whole  route.     Such  a  contract  may,  of  course,  be 

1  Myrick  v.  Railroad  Co.,  107  U.  S.  106.  2  22  Wall.  123. 

517 


§  528.] 


CARRIERS. 


[part  V. 


made  with  any  one  of  different  connecting  lines.  There  is  no 
objection  in  law  to  a  contract  of  the  kind,  with  its  attendant 
liabilities.  See  also  Insurance  Co.  v.  liailroad  Co}  The  gen- 
eral doctrine,  then,  as  to  transportation  by  connecting  lines, 
approved  by  this  court,  and  also  by  a  majority  of  the  state 
courts,  amounts  to  this:  that  each  road,  confining  itself  to 
its  common-law  liabilitj^,  is  only  bound,  in  the  absence  of  a 
special  contract,  to  safely  carry  over  its  own  route  and  safely 
to  deliver  to  the  next  connecting  carrier,  but  that  any  one  of 
the  companies  ma}^  agree  that  over  the  whole  route  its  liability 
shall  extend.  In  the  absence  of  a  special  agreement  to  that 
effect,  such  liability  will  not  attach,  and  the  agreement  will 
not  be  inferred  from  doubtful  expressions  or  loose  language, 
but  only  from  clear  and  satisfactory  evidence."  ^ 

tination.  This  the  defendants  did, 
in  the  present  case,  and  in  so  doing 
performed  their  full  legal  duty.  If 
they  can  be  held  liable  for  a  loss 
that  happens  on  any  railroad  be- 
sides their  own,  we  know  not  what 
is  the  limit  of  their  liability.  If 
they  are  liable  in  this  case,  we  do 
not  see  why  they  would  not  also  be 
liable,  if  the  boxes  had  been  marked 
for  consignees  in  Chicago,  and  had 
been  lost  between  that  place  and 
Detroit,  on  a  road  with  which 
they  had  no  more  connection  than 
they  have  with  any  railway  in 
Europe.  But  the  plaintiff  seeks  to 
charge  the  defendants  on  the  receipt 
given  by  Clarke,  their  agent,  as  on 
a  special  contract  that  the  boxes 
should  be  safely  carried  the  whole 
distance  between  Northampton  and 
New  York.  We  cannot  so  construe 
the  receipt.  It  merely  states  the 
fact  that  the  boxes  had  been  re- 
ceived 'for  transportation  to  New 
York.' "  The  court  further  in  the 
opinion  discussed  the  case  of  Mus- 
champ  V.  Lancaster,  etc.  R.  Co.,  8 
M.  &  W.  421,  and  said:  "We  cannot 
concur  in  that  view  of  the  law." 
(Citing  cases.)  Gray  v.  Jackson,  51 
N.  H.  9. 


«  104  tr.  S.  146. 

2  Myrick  V.  Railroad  Co.,  107  U.  S. 
102;  also  111.  Cent.  R.  Co.  v.  Carter, 
165  111.  570,  36  L.  R.  A.  527.  In  the 
case  of  Nutting  v.  Connecticut  River 
R.  Co.,  1  Gray,  503,  the  receipt  was, 
"  Received  of  E.  Nutting  for  trans- 
porting to  New  York  nine  boxes 
of  planes  marked,  etc."  (naming  the 
goods).  The  boxes  were  delivered  by 
the  initial  company  at  the  terminus 
of  their  road  to  the  N.  H.  etc.  R.  Co., 
and  afterwards  to  the  N.  Y.  etc.  R 
Co.,  which  extends  to  the  city  of 
New  York.  A  receipt  was  taken  by 
the  defendants  for  the  freight  from 
the  first  connecting  carrier;  the 
boxes  were  all  delivered  in  New 
York  except  two  which  were  lost 
between  Springfield  and  New  Haven. 
The  court  say:  "What,  then,  is  the 
obligation  imposed  on  them  by  law, 
in  the  absence  of  any  special  con- 
tract by  them,  when  they  receive 
goods  at  their  depot  in  Northamp- 
ton which  are  marked  with  the 
names  of  consignees  in  the  city  of 
New  York?  In  our  judgment,  that 
obligation  is  nothing  more  than  to 
transport  the  goods  safely  to  the  end 
of  their  road,  and  there  deliver  them 
to  the  proper  carriers,  to  be  for- 
warded towards  their  ultimate  des- 


518 


CH.  IX.J  CONNECTING    CAKRIEES.  [§  52i). 

§529.  The  English  rule. —  The  English  rule  diflFers  from 
the  rule  just  stated  and  discussed  in  this:  that  from  the  very 
act  of  receiving,  by  the  initial  carrier,  goods  directed  beyond 
its  own  route,  a  contract  for  through  shipment  is  implied,  and 
to  exempt  itself  from  liability  beyond  its  own  line  the  carrier 
must  obtain  from  the  shipper  an  express  contract  relieving  him 
from  such  responsibility.  This  rule  is  said  to  be  founded  upon 
the  early  case  of  Muschamp  v.  Lancaster,  etc.  R.  Co.^  but  it 
would  seem  that  this  case,  from  the  opinion  of  Lord  Abinger, 
does  not  go  to  the  extent  of  upholding  the  rule  as  stated.  At 
most  it  but  decided  that  the  accepting  of  the  freight  directed 
to  a  point  beyond  the  carrier's  line  ys,  prima  facie  evidence  of 
a  contract,  and  that  expression  of  the  court  was  hardly  meant 
to  be  as  broad  as  the  construction  usually  put  upon  it.  The 
court  distinctly  say  that  the  whole  question  is  one  for  the  jury, 
that  the  fact  of  the  goods  being  marked  to  be  sent  beyond  the 
carrier's  line,  and  that  the  charges  for  the  entire  distance  were 
stated,  are  to  be  considered;  and  the  court  in  summing  up  the 
matter  says:  "The  whole  matter  is  therefore  a  question  for 
the  jury  to  determine  what  the  contract  was  on  the  evidence 
before  them.  ...  In  cases  like  the  present,  particular  cir- 
cumstances might  no  doubt  be  adduced  to  rebut  the  inference 
\s\)\q\\,  prima  facie,  vsxwsXhQ  made  of  the  defendants  having 
undertaken  to  carry  the  goods  the  whole  way.  The  taking 
charge  of  the  parcel  is  not  put  as  conclusive  evidence  of  the 
contract  sued  on  by  the  plaintiff;  it  is  ov\y prima  facie  evi- 
dence of  it;  and  it  is  useful  and  reasonable  for  the  benefit  of 
the  public  that  it  should  be  so  considered.  It  is  better  that 
those  who  undertake  the  carriage  of  parcels  for  their  mutual 
benefit  should  arrange  matters  of  this  kind  inter  se,  and  should 
be  taken  each  to  have  made  the  others  their  agents  to  carry 
forward." 

The  court  does  not  attempt  to  lay  down  any  decisive  prin- 
ciple that  is  to  govern  in  such  like  cases;  at  most  it  but  decides 
that  it  is  a  question  of  fact  for  the  jury;  that  if  not  objected 
to,  if  no  proofs  to  the  contrary  are  adduced,  the  accepting  of 
the  goods  under  such  circumstances  would  be  prima  facie 
])roof  of  the  intention  of  the  carrier  to  transport  them  to  their 
destination.     But  supposing  the  carrier  had  shown  upon  the 

1 8  M.  &  V^.  421. 
519 


§  530.]  CARRIERS.  [part    V 

trial  of  other  cases  other  circumstances,  or  had  shown  a  con- 
versation between  the  agent  of  the  carrier  and  the  shipper 
which  would  contradict  the  claimed  presumption,  and  the  jury 
had  believed  that  there  was  no  intention  to  assume  responsi- 
bility; under  this  opinion  if  the  case  had  been  so  stated,  a  ver- 
dict exactly  opposite  to  the  one  under  consideration  could 
have  been  sustained.  So  it  may  be  concluded  that  the  differ- 
ence between  the  American  and  English  rule  is  not  so  very 
great,  for  in  this  country  it  is  a  question  for  the  jury  if  an  im- 
plied contract  is  claimed.  The  difference,  therefore,  can  be 
said  to  be  that  under  the  English  rule  the  receiving  of  the 
goods  directed  to  a  point  beyond  the  carrier's  line  is  jyrima 
facie  evidence  that  the  initial  carrier  had  assumed  the  responsi- 
bility of  the  entire  transportation  of  the  goods,  but  this  pre- 
sumption may  be  rebutted;  while  in  the  United  States  the  re- 
ceipt of  goods  under  such  circumstances  does  not  fix  any  such 
liability  upon  the  carrier,  and  does  not  even  make  out  3i prima 
facie  case. 

§  530.  Decisions  of  states  not  harmonious. —  The  decisions 
of  the  states  are  not  entirely  harmonious.  Some  of  them  have 
adopted  the  English  rule,  so  called,  holding  that  where  prop- 
erty is  delivered  to  the  carrier  for  shipment  directed  to  a  des- 
tination beyond  its  line,  and  the  carrier  accepts  the  goods 
for  shipment,  it  is  prima  facie  evidence  of  an  implied  con- 
tract that  the  initial  carrier  will  assume  liability  beyond  its 
own  line,  and  in  order  to  be  excused  from  such  liability  the 
carrier  must  obtain  a  contract  from  the  shipper  to  that  effect;  ^ 

1  Wabash,  etc.  R.  Co.  v.  JaKgerman,  goods  to  carry,  the  carrier  is  bound 

115  111.407.     The  court  say:  "  It  is  a  by  the    common-law   rule   to  carry 

well  settled  doctrine  in   this  state  them,  and  if  they  are  lost  to  account 

that   where    a   common   carrier  re-  to  the  owner  lor  their  value.     Chi- 

ceives  goods  to  carry,  marked  to  a  cago  &  N.  W.  R.  Co.  v.  Mont  fort,  60 

particular  place  beyond  his  line,  he  111.   175:  Erie  Ry.  Co.   v.   Wilcox,  84 

is  bound   under   an    implied  agree-  111.  21)9;  Wabash  R.  Co.  v.  Harris,  55 

ment  fi'om  the  marks  and  directions  111.  App.  159;  Angle  &   Co.  v.  M.  & 

to  carry  to  and  deliver  at  that  place,  M.  R.  Co.,  9  Iowa,  487.  In  Mulligan  v. 

although  it  be  a  place  beyond  his  own  111.  Cent.  R.  Co.,  36  Iowa,  181,  the  court 

line  of  carriage."     111.  Cent.  R.  Co.  v.  say:  "Upon  this  question  there  is  a 

Copeland,  24  111.  332;  111.  Cent.  R.  Co.  striking  lack  of  uniformity  in  the 

v.  Frankenberg,  54  111.  88.     If  goods  decisions.     There    are    three    views 

are  delivered  to  a  common   carrier  which  have  been  maintained  by  their 

marked  for  a  place  beyond  the  ter-  respective    advocates,  with   perhaps 

minus  of  its  line  audit  receives  the  equal  cogency  of  reasoniug:  First. 

520 


CH.  IX.] 


CONNECTING    CARRIERS. 


[§  530. 


while  others  of  the  states,  and  a  great  majority  of  them,  hold 
to  the  rule  that  this  does  not  create  an  implied  contract,  and 
that  the  initial  carrier  does  not  become  liable  beyond  its  own 
line  except  by  a  contract,  either  express  or  implied,  assuming 
such  liability.^ 


That  where  carriers  receive  and  re- 
ceipt for  goods  consigned  to  a  point 
beyond  the  terminus  of  their  road, 
without  any  special  contract  respect" 
ing  the  same,  the  agreement  is  one 
for  transportation  the  whole  dis- 
tance, upon  which  the  first  carrier 
may  be  sued  for  a  loss  occurring 
after  the  goods  have  passed  beyond 
the  terminus  of  its  road.  The  first 
case  which  has  generally  been  cited 
as  announcing  this  doctrine  is  Mus- 
champ  V.  Lancaster  R.  Co.,  8  M.  & 
AV.  421,  decided  in  the  court  of  ex- 
chequer in  1841,  followed  and  re- 
inforced in  Collins  v.  Bristol  &  Exe- 
ter R.  Co..  11  Exch.  790,  and  extended 
even  to  goods  booked  beyond  the 
limits  of  England.  .  .  .  Second. 
That  where  a  carrier  receives  goods 
marked  for  a  particular  designation 
beyond  the  terminus  of  its  line,  and 
does  not  expressly  undertake  to  de- 
liver them  at  the  point  designated, 
the  implied  contract  is  only  to  trans 
port  over  its  own  line,  and  forward, 
according  to  the  usual  course  of 
business,  from  its  terminus.  See  Mc- 
Millan et  al.  V.  M.  S.  &  N.  I.  R.  Co.,  16 
Mich.  120:  Van  Santvoord  v.  St.  John. 
■6  Hill,  157;  Farmers'  &  Mechanics' 
Bank  v.  Champlain  Transp.  Co.,  23 
Vt.  186;  Britnall  v.  Saratoga  &  White- 
hall R.  Co.,  32  id.  665;  Hood  v.  N.  Y. 
&  N.  H.  R.  Co., 22  Conn.  1,  502;  Elmon 
V.  Naugatuck  R.  Co.,  23  id.  457 ;  Nauga- 
tuck  R.  Co.  v.  Waterbury  Button  Co., 
24  id.  468;  Nutting  v.  Connecticut 
River  R.  Co.,  1  Gray,  502;  Burroughs 
V.  Norwich  &  W.  R.  Co.,  100  Mass.  20; 
Darling  V.  Railroad  Co..  11  Allen,  295; 
Hoot  V.  Great  Western  R.  Co.,  45  N.  Y. 
524;  Jemison  v.  Camden  &  Amboy 
R.  Co.,  4  Am.  Law  Reg.  234;  United 


States  Exp.  Co.  v.  Rush  etal.,  24  Ind. 
403;  Pennsylvania  Cent.  R.  Co.  v. 
Schwarzenberger,  45  Pa.  St.  208; 
Rome  R.  Co.  v.  Sullivan.  Cabot  &  Co., 
25  Ga.  228.  Third.  That  the  mere  ac- 
ceptance of  goods  by  a  common  car- 
rier marked  to  a  designation  beyond 
the  terminus  of  its  line  as  a  matter 
of  law  imports  no  absolute  undertak- 
ing upon  the  part  of  the  carrier  be- 
yond the  end  of  its  road,  but  is  a 
matter  of  evidence  to  be  submitted 
to  the  jury,  from  which,  in  connec- 
tion with  other  evidence  produced, 
they  are  to  determine,  as  a  question 
of  fact,  the  real  engagement  entered 
into.  This  position  was  very  ably 
maintained  in  a  recent  and  elaborate 
opinion  of  the  supreme  court  of  New 
Hampshire,  reviewing  almost  the 
whole  current  of  decisions  from  Mus- 
champ  v.  Lancaster  R}'.  Co.,  8  M.  & 
W.  421,  down  to  the  present  period. 
See  Gray  v.  Jackson,  51  N.  H.  9. 
The  question  is  not  an  open  one  in 
this  state.  In  Angle  v.  M.  M.  Ry. 
Co.,  9  Iowa,  487,  the  rule  was  settled 
as  it  is  understood  to  exist  in  Eng- 
land, and  it  was  held  that  the  accept- 
ance by  a  carrier  of  goods  marked  to 
a  designation  beyond  the  terminus 
of  its  road  creates  a  prima  facie  lia- 
bility to  transport  to  and  deliver  at 
that  point,  which  may  be  modified 
by  proof  of  a  different  usage  known 
to  the  shipper  at  the  time  of  making 
the  consignment.  The  court  did  not 
err,  therefore,  in  the  first  branch  of 
the  foregoing  instruction,  as  applied 
to  the  evidence  introduced,  there 
being  no  proof  that  plaintiff  knew  of 
a  usage  of  the  defendant  not  to  trans- 
port freight  beyond  Cairo." 

'  Grover  &  Baker  Co. v.  Railroad  Co., 


521 


§  531.]  OAKRIERS.  [part   V» 

AYhere  the  contract  is  not  ia  writing,  the  question  as  to- 
whether  the  initial  carrier  is  to  carr}'- the  freight  bej^ond  its 
own  line,  assuming  the  liability  incident  to  the  carriage,  seem& 
bj^  the  weight  of  authority  to  be  a  subject  for  proof;  and  where 
in  an  action  against  a  carrier  to  recover  for  the  loss  of  plaint- 
iff's horses  by  lire  while  on  the  line  of  a  connecting  carrier,  it 
was  claimed  that  defendant  only  contracted  for  carriage  to  the 
end  of  its  line,  but  it  appeared  that  plaintiff  had  for  a  number 
of  years  made  like  contracts  with  defendant  on  which  stock 
had  been  carried  through  to  the  destination,  and  that  the  con- 
tract in  question  recited  that  the  stock  was  received  for  ship- 
ment to  the  point  of  final  destination,  and  the  charges  fixed  by 
defendant  were  for  through  carriage,  it  was  held  sufficient  to- 
show  a  contract  of  through  carriage.^ 

§  531.  Some  conditions  and  relations  from  which  contract 
for  tlirongh  shipment  may  be  implied. —  In  the  absence  of  an 
express  contract  for  through  shipment  on  the  part  of  the  ini- 
tial carrier,  or  for  shipment  and  liability  over  its  own  line  only, 
and  for  delivery  to  the  succeeding  carrier,  the  contract  for 
through  shipment  and  liability  of  the  initial  carrier,  if  it  exists- 
at  all,  must  be  implied;  and,  as  we  have  seen,  must  in  all  cases 
depend  upon  facts  and  circumstances,  and  is  a  question  for  the 
jury.  While  it  is  difficult  to  conceive  of  such  a  contract  being 
held  to  exist  as  matter  of  law,  the  courts  have  freely  sustained 
judgments  based  upon  evidence  of  facts  which  imply  that  such 
a  contract  existed. 

Where  the  carrier  accepted  a  carload  of  freight  for  trans- 
portation and  gave  a  receipt  stating  it  was  consigned  to  a  des- 
ignated point  and  contained  the  figures  "  62.20,"  the  point 
named  being  beyond  the  defendant's  line,  and  there  was  evi- 

70  Mo.  672:  Knott  v.  Railroad  Co.,  98  carrier  from  the  usual  route."  Harris 

N.  C.  73;  Detroit,  etc.  R.  Co.  v.  Mc-  v.  Grand  Trunli  R.  Co.,  15  R.  I.  371,  5 

Kensie,  43  Mich.  609;  Rickerson   v.  Atl.  305;  Hunter  v.  S.  Pac.  R.  Co.,  76 

Railroad  Co.,  67  Mich.  110;  Merrick  Tex.   195;  McConnell   v.  Norfolk   & 

V.  Railroad  Co..  107  U.  S.  102.     See  W.  R.  Co.,  86  Va.  248;  Ortt  v.  Minne- 

cases,  Hutch,  on   Carriers,  sees.  148,  apolis,  etc.  R  Co.,  36  Minn.  396:  Craw- 

149,  note.     "  When  a  carrier  receives  ford  v.  Southern  R.  Ass'n,  51  Miss, 

goods    consigned    beyond    its     line  222. 

within  a  special  contract,  it  is  liable  '  Ogdensburg  R.  Co.  v.  Pratt,   89* 

only  to  carry  safely  to  the  end  of  its  U.  S.  (22  Wall)  123. 
own  line  and  so  deliver  to  the  next 


CH.  IX.]  CONNECTING    CARRIERS.  [§  531. 

dence  that  "62.20"  was  the  freight  for  the  entire  distance, 
prorated  among  all  the  connecting  companies,  this  was  held  to 
constitute  a  through  contract  of  shipment.^ 

Where  it  appeared  that  the  plaintiff  had  for  many  years 
been  in  the  habit  of  transportin'g  horses  over  defendant's  road 
to  Boston,  which  was  beyond  the  defendant's  line;  that  the 
station  agent  at  the  point  of  shipment  had  been  such  agent  for 
five  or  six  years,  and  that  nearly  a  week  before  he  had  engaged 
to  give  plaintiff  two  good  cars  for  the  final  shipment  to  carry 
the  horses  to  Boston,  the  place  of  destination,  and  that  the 
cars  furnished  by  the  station  agent  of  the  defendant  had 
always  gone  over  the  connecting  line  and  delivered  the  freight 
in  Boston;  that  the  arrangements  made  were  recognized  by 
the  company;  that  the  office  of  the  agent  was  in  the  railroad 
company's  freight  office;  that  the  plaintiff  paid  the  freight 
through,  sometimes  at  the  point  of  making  the  shipment  and 
sometimes  at  the  destination;  that  on  the  occasion  in  ques- 
tion he  agreed  with  the  defendant's  station  agent  upon  the 
price  through  to  destination;  that  a  way-bill  was  made  out 
for  the  freight  and  cars  through  at  the  price  agreed  upon; 
that  the  price  agreed  upon  was  not  paid,  but  might  have  been, — 
in  such  case  the  court  say:  "We  see  no  sound  objection  to  the 
admission  of  this  way-bill  as  evidence.  If  a  written  contract, 
it  was  not  only  evidence,  but  the  best  evidence  of  what  the 
contract  was.  It  was  exhibited  to  Pratt  (the  plaintiff),  before 
the  cars  were  started,  as  a  part  of  the  transaction.  If  not  a 
contract,  it  was  an  act  done  and  a  declaration  made  by  the 
agent'in  the  very  act  of  transacting  the  business  and  as  a  part 
of  it,  which  brought  it  within  the  principle  of  the  res  gestce. 
This  evidence  shows  that  the  oral  agreement  was  to  carry  his 
horses  to  Boston,  not  to  carry  to  Rouse's  Point  and  thence  to 
forward  to  Boston,  but  to  carry  as  well  and  as  freely  over  the 
Vermont  and  Massachusetts  roads  as  for  the  Ogdensburg  road. 
Again,  a  specified  price  was  agreed  upon  for  transportation 
over  the  whole  route.  This  was  in  accordance  with  the  prac- 
tice, and  whether  paid  at  Pottsdam  or  at  Boston  was  unim- 
portant. This  practice  had  been  continued  for  years,  and  the 
jury  had  the  right  to  hold  the  contract  to  be  the  same  without 

1  Cent.  R.  &  Banking  Co.  v.  Ga.  Fruit  &  Vegetable  Exchange,  91  Ga. 
389,  17  S.  E.  904. 

523 


§§  532,  533.]  CARRIERS.  [part  v. 

• 

reference  to  prepayment  or  postpayment.  The  jury  were  jus- 
tified in  inferring  that,  where  a  carrier  fixes  a  price  for  trans- 
portation over  the  whole  route,  he  makes  the  entire  con- 
tract his  own.  One  who  carries  simply  over  his  own  line  and 
thence  forwards  to  other  lines  would  ordinarily,  the  jury  may 
say,  make  or  collect  his  own  charges  and  leave  the  remaining 
charges  to  be  collected  by  those  performing  the  remaining  serv- 
ices. Keceipt  of  the  entire  pay  affords  a  presumption  of  an 
entire  contract."^ 

And  so  it  may  be  said  that  the  evidences  of  joint  liability 
are  a  through  bill  of  lading;  through  charges  for  the  goods  car- 
ried ;  the  goods  shipped  so  as  to  be  carried  through  without 
change  of  cars;  a  sharing  of  profit  and  loss  with  connecting 
companies;  the  holding  out  to  the  public  by  the  initial  carrier 
that  it  will  be  carried  through  to  destination  beyond  its  OAvn 
line.  These,  with  other  circumstances  that  might  be  enumerated, 
also  evidence  an  intention  upon  the  part  of  the  initial  carrier 
to  contract  for  through  shipment.^ 

§  532.  Who  are  connecting  carriers. —  The  term  "connect- 
ing carrier  "  is  used  in  contradistinction  to  the  term  "  initial  car- 
rier "  or  "  first  carrier."  It  may  be  said,  then,  that  a  connecting 
carrier  is  a  carrier  between  the  initial  carrier's  line  and  the 
destination  of  the  goods,  and  so  there  may  be  one  or  more  con- 
necting carriers.^ 

§  533.  The  relation  between  the  shipper,  the  initial  car- 
rier and  the  connecting  carrier. —  The  relation  between  the 
shipper,  the  initial  carrier  and  the  connecting  carrier  depends 
entirely  upon  the  contract  for  shipment.  Was  it  a  contract  for 
through  shipment  by  the  initial  carrier,  or  simply  for  shipment 
over  its  line  and  delivery  to  the  connecting  carrier?  If  the 
contract  with  the  initial  carrier  was  for  shipment  of  the  goods 
over  connecting  lines  through  to  their  destination,  then,  in  that 

1  Railroad  Co.  v.  Pratt.  22  Wall.  123,  distance,  or  received  freight  for  the 

132.    In  Root  V.  Great  Western  R.  Co.,  entire    distance,  or    other    circum- 

45  N.  Y.  524,  in  speaking  of  the  con-  stances  indicating  an  understanding 

tract  to  transport  as  a  common  car-  that  it  was  to  carry  through." 

rier  over  other  lines,  the  court  say:  2  international,  etc.  Co.  v.  Tisdale, 

"Such  an   undertaking  may  be  es-  4  L.  R.  A.  545;  Shewalter  v.  Mo.  Pac. 

tablished  by  express  contract,  or  bj^  R.  Co.,  84  Mo.  App.  589. 

showing    that    the    companj^    held  » jyiausen  v.  Jacobs,  12  Mo.  App. 

itself  out  as  a  carrier  for  the  entire  125,  93  Mo.  331. 

524 


Ca.  IX.]  CONNECTING    CAEKIERS.  [§  584. 

case,  the  connecting  carriers  are  but  the  agents  or  servants  of 
the  initial  carrier;  they  transport  the  goods  for  the  initial  car- 
rier. But  even  if  this  be  so,  the  shipper,  as  we  shall  see,  may 
hold  the  connecting  carriers  responsible  for  any  loss  or  injury 
to  the  goods  that  results  from  their  negligence  or  failure  to 
deliver  the  property  in  as  good  condition  as  when  received  by 
them;  or  the  shipper  may  hold  the  initial  carrier  for  damage 
or  loss  wherever  it  may  happen  during  transportation  under 
the  contract  of  shipment.  If  the  contract  with  the  initial  car- 
rier was  simply  to  ship  the  goods  over  its  own  line  and  deliver 
them  to  the  connecting  carrier,  then  the  initial  carrier  is  the 
agent  of  the  shipper  in  the  matter  of  delivering  the  freight  to 
the  connecting  carrier,  and,  if  there  is  more  than  one,  the  first 
connecting  carrier  becomes  the  agent  of  the  shipper  for  the 
delivery  of  the  goods  to  the  second  carrier,  and  so  on  to  the 
end  of  the  shipment.  And  so  each  shipment  or  delivery  to  a 
connecting  carrier  is  in  fact  a  shipment  or  delivery  by  the 
shipper  himself  through  his  agent;  and  when  the  initial  carrier 
in  such  case,  or  the  connecting  carrier,  has  delivered  the  goods 
in  as  good  condition  as  when  received  to  the  succeeding  car- 
rier, or  the  consignee,  and  without  delay,  the  carrier  thus  de- 
livering the  property  is  relieved  from  further  responsibility.^ 
§  534.  The  duty  of  the  connecting  carrier. —  The  duties 
devolving  upon  the  connecting  carrier  are  the  same  as  those 
incumbent  upon  the  initial  carrier.  He  is  bound  to  receive  the 
goods  of  all  who  apply  to  him  for  shipment,  if  in  the  line  of 
his  business  as  a  carrier,  and  it  makes  no  difference  whether 
the  goods  are  presented  by  an  initial  carrier,  who  has  become 
liable  for  a  contract  for  through  carriage  of  the  property,  or 
by  the  initial  or  connecting  carrier  as  the  agent  of  the  shipper; 
his  liability  is  the  same  as  though  he  received  the  goods  from 
the  shipper  direct;  and  if  he  would  relieve  himself  of  the  ex- 
traordinary liability  he  must  do  so  by  contract  at  the  time  of 
receiving  the  property  for  shipment.  It  is  the  duty  of  the  con- 
necting carrier  to  carry  the  goods  safely  over  his  line  and  de- 
liver them  to  the  next  connecting  carrier,  or  to  the  consignee 
if  they  have  arrived  at  their  destination.     For  any  delay  upon 

1  In  M.  H.  O.  R.  Co.  v.  Kirkwood,  signee  in  transporting  them  to  an- 
4^  Mich.  51,  it  was  held  "a  carrier  of  other  carrier,  and  not  as  the  latter's 
goods  acts  as  the  agent  of  the  con-    agent." 


§  534.] 


CARRIERS. 


[part   V. 


his  own  line,  or  in  delivery  to  the  next  connecting  carrier,  he 
is  liable.  Simply  unloading  the  goods  upon  the  dock  or  platform, 
or  putting  them  into  a  warehouse  at  the  end  of  his  line,  is  not 
a  delivery  to  a  connecting  c'arrier  that  will  relieve  him  from 
responsibility.^  Xor  can  the  initial  or  connecting  carrier  re- 
lieve himself  from  liabilit}'"  by  delivering  the  goods  or  forward- 
ing them  by  some  other  connecting  carrier  than  the  one  desig- 
nated and  stipulated  for  in  the  contract  of  shipment.^  There 
must  be  an  actual  delivery  of  the  goods,  or  an  offer  to  deliver 
to  the  succeeding  carrier,  and  if  the  succeeding  carrier  refuses 
to  accept  them  and  transport  them  over  his  line  he  must  at 
once  report  that  fact  to  the  owner,  or  person,  or  company  from 
whom  he  received  the  goods,  and  if  delay  is  occasioned,  or  loss 
or  damage  is  the  result  of  the  failure  to  so  report  while  the 
goods  are  thus  held,  because  of  the  refusal  to  receive  them  as 
aforesaid  b}''  the  succeeding  carrier,  the  carrier  will  be  liable  as 
a  warehouseman.^     Nor  will  delivery  of  the  goods  to  the  con- 


1 1  Mich.  Dig.,  sec.  44.  "A  common 
carrier's  liability  for  freight  that  is 
to  be  transfeiTed  to  another  carrier 
continues  until  it  is  so  transferred, 
or  at  least  until  such  notification 
lias  been  given  to  the  other  carrier 
as  amounts  to  a  tender  of  deliver^^ 
And  if  the  first  carrier  merely  stores 
the  freight  in  a  warehouse  of  its  own, 
wliere  the  other  is  in  the  habit  of 
taking  it  at  its  convenience,  and  the 
freight  while  so  stored  is  destroyed, 
the  first  carrier  is  answerable  for  its 
value."  Condon  v.  M.  H.  etc.  R.  Co., 
55  Mich.  218. 

-Strong  v.  Certain  Quantity  of 
Wheat,  Fed.  Cases  No.  13,541.  "  Non- 
performance of  the  carrier's  contract 
to  transport  live-stock  to  an  extraor. 
dinaiy  terminal  point  is  not  excused 
by  the  fact  that  the  connecting  line 
over  which  the  shipment  was  to  be 
carried  was  prevented  by  a  mob  from 
doing  business."  Where  goods  are 
not  shipped  by  the  consignor  in  ac- 
cordance with  the  directions  of  the 
buyer,  and  are  deposited  at  the  end 
of  the  carrier's  road  and  he  refuses 
to  deliver  them  to  the  connecting 

536 


line  on  the  ground  that  the  liability 
of  the  latter  is  greater  than  the  ex- 
emptions contained  in  the  original 
contract,  and  while  on  deposit  they 
are  destroyed  by  fire,  without  notice 
given  to  the  consignor,  the  carrier  is 
liable  for  the  loss.  Ravvson  v.  Holland, 
59  N.  Y.  611. 18  Am.  Rep.  894.  In  Mem- 
phis, etc.  R.  Co.  V.  Stockard,  58  Tenn. 
(11  Heisk.)  568,  it  was  held  a  railroad 
company  is  liable  for  its  failure  to 
deliver  freight  at  a  place  beyond  its 
own  line  and  on  the  line  of  the  con- 
necting carrier,  in  the  absence  of  a 
special  contract  limiting  its  liability, 
though  the  connecting  carrier  re- 
fuses to  receive  the  freight  and  ad- 
vance freight  charges  due  the  first 
carrier.  Johnson  v.  N.  Y.  Cent.  R.  Co., 
39  How.  Pr.  127:  East  Tenn.  etc.  R 
Co.  V.  Nelson,  41  Tenn.  (1  Caldw.)  272. 
3  In  American  Sugar  Refining  Co. 
V.  McGhee,  96  Ga.  27,  it  was  held  that 
"  where  goods  are  shipped  over  the 
lines  of  connecting  railways  to  a 
consignee  designated  in  the  bill  of 
lading,  and  on  arrival  at  designation 
the  receivei-s  of  the  railway  company 
which  completed  the  transportation 


•CH.   IX. J  CON>fECTING    CARRIERS.  [§  535. 

necting  carrier  be  alone  sufficient  to  relieve  either  the  initial 
•carrier  or  succeeding  carrier  who  delivers  them  from  liability,  if 
loss  or  injury  occurs  by  reason  of  a  deviation  from  the  initial 
contract,  if  the  initial  or  connecting  carrier  who  thus  delivers 
the  goods  fails  to  inform  the  connecting  carrier  fully  as  to  the 
terms  of  the  shipment;  so  it  may  be  said  to  be  the  duty  of  the 
carrier  who  makes  such  delivery  to  inform  the  connecting  car- 
rier at  the  same  time  fully  as  to  the  terms  of  the  contract  of 
shipment.^ 

§  535.  Authority  to  make  contract  binding  connecting 
carriers. —  The  business  of  the  common  carrier  is  generally 
carried  on  through  agents,  and,  as  we  have  seen,  the  initial 
carrier  who  makes  a  through  contract  for  rates  and  carriage 
beyond  its  own  line,  especially  where  its  liability  is  limited  to 
its  own  line,  and  assumes  liability  only  to  deliver  the  goods 
to  the  connecting  carrier,  acts  in  the  matter  of  making  the 
through  rate  or  the  time  for  transporting  the  goods,  or  as  to 
any  other  stipulation,  as  the  agent  of  the  connecting  carrier. 
But  as  the  business  of  making  the  shipment,  at  the  point  where 
the  goods  are  shipped,  is  transacted  usually,  if  not  always,  by 
s.  station  agent  or  freight  agent  of  the  initial  carrier,  the  ques- 
tion has  been  raised.  Has  such  an  agent  of  the  initial  carrier 
authority  to  make  a  contract  that  will  be  binding  upon  the 
connecting  carrier?  The  initial  carrier,  or  its  general  agent, 
it  is  said,  may  make  such  a  contract,  especially  where  there 
are  shipping  arrangements  between  the  roads;  but  how  about 
this  agent  of  the  agent  of  the  connecting  carrier  making  such 
a  contract  —  the  station  agent  of  the  initial  carrier  bindino; 
the  connecting  carrier? 

It  would  seem,  on  principle,  that  the  station  agent,  even  if 

tendei'ed  delivery  to  that  consignee  ^  And  in  Lesinski  v.  G.  W.  D.  Co., 
and  he  declined  to  receive  the  good.s,  10  Mo.  App.  134,  it  was  held  that 
the  liability  of  the  receivers  as  com-  where  a  carrier  agreed  after  trans- 
ition carriers  thereupon  ceased,  and  porting  goods  to  deliver  them  to  an- 
they  became  liable  as  warehousemen  other  cari'ier,  and  the  latter  refused 
•only,  and  as  such  were  chargeable  them,  the  former  did  not  fulfill  its 
with  the  duty  of  notifying  the  con-  duty  by  storing  the  goods,  but  that 
signer  of  the  consignee's  refusal  to  notice  should  have  been  sent  either 
accept  the  goods,  and  witli  the  fur-  to  consignor  or  consignee, 
ther  duty  of  holding  the  same  sub- 
ject to  the  order  of  the  consignor." 

527 


§  035.]  CAKRIEKS.  [part    V. 

be  be  beld  as  acting  as  a  sub-agent  of  the  connecting  carrier, 
would  be  able  to  bind  the  connecting  carrier  upon  the  ground 
that  the  making  of  the  contract  to  carry  the  goods,  and  the 
making  of  the  rate,  or  the  making  of  any  other  stipulation,  if 
not  extraordinary  and  unusual,  must  be  held  to  be  simply  an 
incident  to  the  business  of  making  the  shipment,  and  the  law 
will  presume  that  a  principal  must  expect  that  this  kind  of 
work  will  be  done  by  sub-agents  appointed  by  the  initial  car- 
rier; that  because  of  the  modern  and  usual  manner  of  doing 
business,  which  is  well  understood  by  connecting  carriers  and 
by  the  public,  it  may  be  said  that  the  connecting  carrier  knows 
that  it  is  necessar}^,  in  order  to  transact  the  business,  that  the 
initial  carrier  shall  employ  agents  to  perform  this  duty  at  the 
several  points  of  shipment. 

There  is  another  principle  of  the  law  of  agency  very  prom- 
inently in  view  that  ma}'  be  invoked  in  this  class  of  cases.  The 
general  public  have  rights  in  the  matter.  It  is  generally  known, 
in  fact  it  is  a  matter  of  common  knowledge,  that  railroad  com- 
panies and  other  carriers,  whether  initial  or  connecting  car- 
riers, are  anxious  to  carry  the  goods  that  are  being  shipped. 
Often  they  have  special  agents  operating  at  places  off  their 
line  of  road  soliciting  the  carriage  of  the  freight  that  is  offered. 
Shippers  know  that  ordinarily  the  arrangements  for  shipping 
are  made  by  the  agents  at  the  several  stations;  that  through 
shipments  made  by  them  are  accepted  by  connecting  roads, 
and  the  goods  carried  to  their  destination.  So  it  can  be  said, 
and  there  can  be  no  doubt,  that  because  of  the  general  course  of 
the  business,  so  far  as  the  public  and  the  general  understanding 
of  the  sliippers  are  concerned,  these  agents  have  at  least  ap- 
parent authority  to  act  not  only  for  their  own  compan}^,  but 
for  connecting  lines,  and  public  policy  will  not  allow  a  connect- 
ing carrier  to  defend  upon  the  ground  that  such  agents  do  not 
have  authority  to  act  unless  the  contract  made  by  them  is  un- 
usual or  fraudulent.  The  public's  interest  must  be  subserved, 
and  the  law  will  demand  that  in  this  business  the  usual  and 
generally  understood  procedure  shall  be  binding  upon  the 
carriers. 

In  Rudell  et  al.  v.  Ogdensburg  Transit  Co)  the  court,  quoting 
from  Lawson  on  Carriers,  say :  "As  common  carriers,  especially 

1117  Mich.   568;    Lawson.  Cou.  of  Carriers,  §  229. 
53S 


CH.  IX.]  CONNECTING    CAEEIEKS.  [§  536. 

at  the  present  day,  transact  the  greater  part,  if  not  all,  of  their 
business  with  the  public  through  agents  and  servants,  it  is 
plain  that  the  public  have  a  right  to  assume  that  they  are  au- 
thorized to  do  whatever  they  attempt  to  do."  The  court  fur- 
ther say :  "  This  rule  does  not  include  contracts  so  unusual  and 
extraordinary  that  they  cannot  reasonably  be  included  within 
the  general  authority." 

§  536.  Actions  for  loss  or  damage. —  The  question,  against 
which  of  the  carriers  shall  the  owner  of  the  goods  bring 
his  action,  in  case  of  loss  or  injury,  where  the  shipment  has 
been  over  several  lines,  has  been  very  much  discussed  both  in 
this  country  and  in  England,  and  there  is  by  no  means  har- 
mony among  the  decisions  upon  this  question. 

The  decisions  seem  to  group  themselves  under  three  distinct 
holdings.  First,  that  where  goods  have  been  injured,  the  con- 
signee or  consignor  may  bring  his  action  against  the  initial 
carrier  and  hold  him  liable  for  the  loss  or  injury.  In  the  absence 
of  an  express  contract  the  English  courts  hold  to  this  theory, 
maintaining  that  there  is  a  presumption  that  the  first  carrier  is 
liable,  and  this  even  though  it  refused  to  take  pay  for  continuous 
shipment  or  for  any  shipment  beyond  its  own  road,  holding 
that  the  acceptance  of  the  goods  and  the  shipment  of  them  to 
their  destination,  without  positively  limiting  his  liability  by 
contract,  v^Si^^prima  facie  an  undertaking  to  carry  them  to  their 
d(?stination.  Second.  A  second  class  of  authorities  holds  that 
the  last  carrier  is  liable,  and  that  the  action  may  be  brought 
against  him;  this  being  upon  the  presumption  that  the  goods 
must  have  been  received  in  good  order  when  they  came  to  the 
line  of  the  last  carrier.  As  where  goods  in  a  box  were  shipped 
by  three  successive  carriers,  and  when  delivered  to  the  con- 
signee, although  there  were  no  external  indications  of  the  fact, 
the  box  was  found  to  have  been  opened  and  certain  goods  ab- 
stracted therefrom,  it  was  held  "  that  the  jury  may  presume, 
in  the  absence  of  evidence  to  the  contrary,  that  the  box  re- 
mained unopened  until  it  came  into  the  possession  of  the  last 
carrier,  and  that  the  loss  occurred  through  its  fault."  The 
court  say:  "As  the  common  carrier  next  in  order,  the  defend- 
ant was  bound  to  receive  and  transport  the  boxes  when  tend- 
ered. It  was  bound  to  receive  them  in  the  condition  in  which 
they  were.     It  had  no  means  of  investigation  or  inquiry  into 

34  529 


§  536.]  CARRIERS.  [part   V. 

their  contents.  It  had  no  right  to  open  the  boxes  or  examine 
what  they  contained,  and,  if  it  had,  could  not  have  detected  the 
loss  by  such  examination,  and  so  have  refused  to  receive  and 
carry.  It  must  take  the  boxes  as  they  were,  with  no  external 
signs  or  appearances  of  breaking  or  injury,  and  nothing  to 
give  warning  that  the  cloths  had  been  previously  abstracted 
or  removed,  and  carry  them  forward  to  their  place  of  destina- 
tion. Under  these  circumstances,  the  rule  or  presumption  of 
law  which  makes  the  defendant  liable  for  the  value  of  the 
goods,  unless  (what  seems  quite  impossible  to  be  done)  it  shows 
where  the  loss  actually  took  place,  must  be  supported  by  most 
clear  and  satisfactory  reasons  of  policy  or  necessity,  or  other- 
wise it  should  be  rejected.  It  must  be  shown  that  greater  in- 
justice or  more  certain  injustice  will  ensue  from  its  rejection 
than  will  or  may  follow  from  its  adoption.  I  have  been,  as  I 
have  said,  in  very  considerable  doubt;  but  examination  con- 
vinces me  that  there  are  such  reasons,  and  that  both  principle 
and  authority  sustain  the  presumption.  The  very  uncertainty 
which  exists  as  to  when  or  where  the  cloths  were  taken  out,  or 
in  whose  custody  the  boxes  then  were,  and  the  difficult}^  or  im- 
possibility of  ever  ascertaining  those  facts,  make  the  presump- 
tion absolutely  necessar}^  What  is  difficult  or  impossible  for 
the  defendant  to  find  out  with  respect  to  the  breaking  and 
larceny  is  still  more  difficult  or  impossible  for  the  plaintiffs. 
The  defendant  possesses  means  and  facilities  which  the  plaint- 
iffs do  not.  To  say  that  the  plaintiffs  shall  not  recover  be- 
cause they  have  not  ascertained  and  proved  that  the  cloths 
were  taken  while  the  boxes  were  in  the  custody  of  the 'defend- 
ant, is,  in  effect,  to  say  that  they  are  without  remedy  in  the 
law  for  their  loss.  If  required  to  make  such  proof  to  estab- 
lish a  cause  of  action  against  this  company,  then  the  same 
proof  would  be  required  in  a  suit  against  either  of  the  others, 
and  the  plaintiff  could  not  recover  against  any,  although  it  is 
certain  that  one  of  them  is  or  should  be  responsible  for  the 
loss.  If  the  plaintiffs  knew  or  could  prove  in  whose  custody 
the  boxes  were  when  the  cloths  were  taken,  there  would  be 
no  hardship,  perhaps,  in  requiring  them  to  sue  that  company. 
But  the  plaintiffs  do  not  know,  nor  is  it  possible  for  them  to 
ascertain  this,  and,  unless  aided  by  presumption,  they  are  with- 
out remedy,  which  is  a  positive  and  certain  injustice.     I  know 

530 


CH.  IX.] 


CONNECTING    CARRIERS. 


[§  536. 


of  no  more  reasonable  or  proper  presumption  to  apply  than 
that  here  invoked."  ^  Third.  A  third  class  of  decisions  holds 
that  there  is  no  presumption  as  to  where  the  goods  were  lost 
or  injured,  but  that  it  is  a  subject  of  proof,  and  that  the  plaint- 
iff in  order  to  recover  must  show  which  of  the  carriers  was  lia- 
ble for  the  injury. 

A  case  that  is  often  quoted  and  is  well  reasoned  out  is  the 
case  of  M.  H.  iia  0.  Co.  v.  KirTiwood^  the  court  holding  that 
the  plaintiff  is  bound  to  show  affirmatively  that  the  goods  were 
delivered  in  good  order  to  the  carrier  whom  he  seeks  to  make 
liable  for  the  injury;  for  example,  if  the  last  carrier  is  sued, 
that  the  plaintiff  must  show  that  he  received  the  goods  in  good 
order,  and  that  there  is  no  presumption  that  would  relieve  the 
plaintiff  from  such  proof.  In  the  case  under  discussion  the 
goods  were  shipped  in  New  York,  turned  over  at  Buffalo  to 
the  Lake  Superior  Transit  Company,  and  deliv^ered  by  the 
transit  company  at  Marquette  to  the  railroad  company,  the  last 


1  Laughlin  et  al.  v.  Chicago  &  N.  W. 
Ry.  Co.,  28  Wis.  204.  210.  The  court 
further  say:  "Tlie  difficulties,  nay 
even  impossibilities,  by  which  owners 
would  be  beset  if  put  to  the  task 
of  ascertaining  where  their  pack- 
ages or  boxes  were  broken  open 
and  contents  plundered  when  in 
transit  over  our  long  routes,  are  well 
known,  and  are  illustrated  by  the 
facts  in  this  case.  They  are  also 
portrayed  by  Chief  Justice  Perley  in 
Lock  Co.  V.  Railroad  Co.  (Sup.  Ct. 
N.  H,),  10  Am.  Law  Reg.  (N.  S.)  260, 
263;  by  Waite,  C.  J.,  in  Elmore  v. 
NaugatuckR.  Co.,  23  Conn.  482;  and 
by  Smith,  J.,  in  McDonald  v.  Western 
R.  Co.,  34  N.  Y.  501,  502.  In  the  first 
named  case  the  chief  justice  says: 
'Any  rule  which  should  have  the 
effect  to  defeat  or  embarrass  the 
owner's  remedy  would  be  in  direct 
conflict  with  the  principles  and  the 
whole  policy  of  the  common  law.'  I 
am  of  the  same  opinion.  I  think 
there  is  no  time  to  relax  the  strin- 
gent and  wholesome  rules  of  the 
common  law,  and  must  hold  that  the 


doctrine  of  presumption  was  rightly 
applied  by  the  court  below  in  aid  of 
the  plaintiffs  in  this  case."  Faison  v. 
Railroad  Co.,  69  Miss.  569;  Railroad 
Co.  V.  Brewing  Co.,  96  Tenn.  677, 
holding  that  there  is  a  presumption 
that  when  the  goods  are  received  in 
good  order  they  ought  to  be  in  good 
order  to  the  last  carrier.  Evans  v. 
Atlanta,  etc.  R.  Co.,  56  Ga.  498. 
Goods  received  by  a  railroad  com- 
pany and  delivered  over  its  own 
road  are  presumed  to  have  been  re- 
ceived in  good  order  if  nothing  ap- 
pears to  the  contrary.  Cent.  etc.  R. 
Co.  V.  Bayer,  91  Ga.  115;  Forester  v. 
Railroad  Co.,  92  Ga.  699,  96  Ga.  428. 
"  Presumed  that  goods  reached  last 
carrier  in  as  good  condition  as  when 
delivered  to  first  carrier."  Shrivet 
V,  Railroad  Co.,  24  Minn.  506,  34  Am. 
Rep.  353;  Leo  v.  Railroad  Co.,  30 
Minn.  438;  Flynn  v.  Railroad  Co.,  43 
Mo.  App.  424;  Smith  v.  N.  Y.  Cent. 
R.  Co.,  43  Barb.  225,  41  N.  Y.  620; 
Dixon  v.  Railroad  Co.,  74  N.  C.  538; 
Railroad  Co.  v.  Pratt,  22  Wall.  123. 
2M45ich.  51. 


531 


§  536.]  CAERIEKS.  [part   V. 

carrier,  against  whom  the  action  was  brought.  The  court 
below  charged  the  jury  that  if  the  goods  were  delivered  in 
Xew  York  in  good  order  to  the  first  carrier,  they  would  have 
a  right  to  infer  that  they  continued  so  when  received  by  de- 
fendants, unless  evidence  was  given  which  showed  the  contrary. 
The  court  held  this  charge  to  be  erroneous,  and  that  the 
plaintiff  was  bound  to  show  affirmatively  that  the  goods  were 
delivered  in  good  order  at  Marquette  to  the  defendants.  The 
court  say :  "  We  think  this  rule  is  just,  and  are  not  at  all  dis- 
posed to  depart  from  it.  A  carrier  has  no  means  in  a  case  like 
this  of  opening  packages  and  examining  their  contents.  Unless 
there  is  some  outward  token  which  is  suspicious,  he  may  and 
must  take  the  articles  and  forward  them  on  the  usual  terms. 
He  is  bound  in  law  to  deliver  them  in  the  condition  in  which 
he  receives  them.  But  there  can  be  no  further  responsibility; 
and  any  rule  of  law  which  would  make  him  responsible  actu- 
ally or  presumptively  for  the  conduct  of  previous  independent 
carriers  would  be  grossly  unfair,  and  subject  him  to  losses 
against  which  he  could  have  no  protection.  He  has  nothing 
to  do  with  any  of  the  previous  dealings  with  the  property,  and 
no  means  of  informing  himself  about  them.  We  cannot  see 
how  this  case  is  different  from  what  it  would  have  been  if  the 
plaintiffs  themselves  had  delivered  the  boxes  to  the  company 
at  Marquette.  In  law  the  transit  company  acted  merel}'"  as 
plaintiffs'  agent  in  turning  them  over,  and  cannot  be  treated  as 
representing  the  Marquette  Railroad  Company  for  any  purpose 
without  reversing  the  whole  order  of  business.  .  .  .  The 
presumption  that  things  remain  unchanged  applies  in  such  a 
case  as  the  present  just  as  forcibly  backward  as  forward.  It 
may  quite  as  reasonably  be  presumed  that  the  goods  were  de- 
livered at  Xegaunee  and  Ishpeming,  in  the  condition  in  which 
they  were  received  at  Marquette,  as  that  they  came  to  Mar- 
quette as  they  left  Xew  York.  The  goods  were  certainly  dam- 
aged when  they  reached  their  destination.  To  assume  that 
they  were  damaged  after  they  left  Marquette,  and  not  on  any 
of  their  previous  removals,  is  to  make  a  very  arbitrary  assump- 
tion which  has  no  more  foundation  in  probability  than  any 
other.  If  it  were  worth  while  to  enlarge  on  what  is  confess- 
edly a  presumption  not  resting  on  any  sure  foundation  in  ex- 
perience, it  might  very  well  be   questioned  whether  such  a 

533 


CH.  IX.]  CONNECTING    OARKIERS.  [§  536. 

presumption  is  admissible  at  all  as  applied  to  things,  the  posi- 
tion of  which  does  not  remain  either  fixed  in  place  or  free  from 
disturbance  by  human  agencies.  But  we  need  not  enlarge  on 
this  because  the  nature  of  the  suit  itself  raises  different  pre- 
sumptions which  are  well  recognized.  This  suit  is  based  on 
the  negligence  of  the  carrier.  It  can  only  be  maintained  on 
the  theory  that  the  carrier  or  its  servants  did  not  properly  care 
for  or  handle  the  goods.  There  is  no  rule  better  established 
or  more  righteous  than  the  rule  that  any  one  who  claims  a 
right  to  damages  for  negligence  must  prove  it.  The  presump- 
tion that  a  party  sued  has  done  no  wrong  must  prevail  till 
wrong  is  shown.  A  carrier's  obligation  to  carry  safely  what 
he  received  safely  is  independent  of  care  or  negligence.  But 
in  the  absence  of  proof  that  there  was  property  delivered  to 
him,  or  safely  delivered  to  him,  any  presumption  that  he  re- 
ceived it  is  one  which  goes  beyond  and  behind  the  duty  of  a 
carrier  and  enters  into  the  origin  and  making  of  the  contract. 
Until  such  property  comes  into  his  hands  there  is  nothing  for 
a  contract  to  act  upon,  and  the  contract  is  not  proved  until 
that  is  proved."  ^ 

It  would  seem,  however,  that  the  great  weight  of  authority 
in  the  United  States  is,  that  the  plaintiff  may  bring  his  action 
against  the  last  carrier,  and  that  the  court  may  presume  that 
the  goods  were  received  by  him  in  good  condition,  and  that  the 
burden  of  proving  otherwise  is  upon  the  carrier. 

1  Gilbert  v.  Dale,  5  Adol,  &  El.  543;  166  Mass.  154?  Orr  v.  Chicago,  etc.  Co., 
Midland  Ry.  Co.  v.  Bromley,  17  Q.  B.  21  Mo.  App.  333;  Cavallov.  Tex.  Pac. 
372;  Farmington  Co.  v.  Railroad  Co.,    R.  Co.,  43  Pac.  91& 

538 


CHAPTEE  X. 


COMPENSATION,    AND    HEREIN  OF  "DISCRIMINATION  AND  LIEN 
OF  THE  CARRIER. 


Law  forbidding  applies  to  all 
branches  of  carrier's  busi- 
ness. 

Relates  to  facilities   for 

shipment. 

The  discrimination  that  is  for- 
bidden. 

Regulation  by  statute  of 

states. 

The  interstate  commerce  act. 

Similar  to  the  lien  of  the 
bailee  —  Special,  not  gen- 
eral. 

When  does  the  lien  attach. 

When  shipment  made  by  one 
without  authority. 

For  what  charges  will  the  lien 
attach. 

The  contract  for  shipment 
must  be  fulfilled. 

The  lien  how  lost,  satisfied  or 
discharged. 

Lien  satisfied. 

Lien  discharged. 


§537.  Compensation. —  Because  of .  the  contract  creating 
the  relation  the  carrier  has  a  right  to  compensation  for  carry- 
ing the  goods,  and  may,  as  a  condition  precedent  to  receiving 
them  for  carriage,  demand  that  he  be  paid  reasonable  charges 
for  transportation;  but  the  right  to  prepayment  is  waived  if 
not  so  demanded.  The  compensation  for  carrying  the  goods 
may  be  collected  by  the  carrier  by  an  action  against  the  party 
liable  for  the  payment,  but  in  such  an  action  the  shipper  or 
consignee  (defendant)  may  recoup  for  any  failure  upon  the 
part  of  the  carrier  which  has  resulted  in  damage  to  the  goods, 
or  for  failure  to  deliver  as  contracted,  and  offset  such  dam- 

534 


537. 

Compensation. 

§548. 

538. 

Amount  depends  generally  on 
goods  delivered. 

539. 

Carrier's  special    security  in 
and  right  to  possession  of 

549. 

goods. 

550. 

540. 

Carrier  may  protect  his 

possession. 

551. 

541. 

The  carrier    may  insure 

the  goods. 

552. 

543. 

When  can  the    carrier 

sell  the  goods. 

553. 

543. 

The  amount  charged. 

544. 

Right  of  earner  to  collect  its 

554. 

advances  to  connecting  car- 

555. 

riers. 

545. 

Who  is  liable  to  the  carrier 
for  the  freight. 

556. 

546. 

Where  the  freight  is  only  car- 
ried a  part  of  the  distance 

557. 

contracted    for — Pro  rata 

558. 

itineris. 

547. 

Where  goods  shipped  against 

559. 

the  will  of  the  owner,  as  by 

560. 

one  not  having  the  right  to 

ship. 

CH.  X.]  COMPENSATION    AND    LIEN    OF    CAEEIEE.  [§  538. 

ages  against  the  carrier's  claim.  And  he  may  assert  and  have 
the  same  right  and  privilege  against  the  claim  of  the  carrier 
for  damages  where  there  is  no  special  contract,  for  unreason- 
able dela}^  or  for  injury  or  damage.^ 

§  538.  Amount  depends  generally  on  goods  delivered. — 
As  a  general  rule,  and  with  but  very  few  exceptions,  it  may 
be  said  that  the  carrier  can  only  collect  compensation  for  the 
carrying  of  the  goods  actuall}''  delivered  to  the  consignee ;  but 
it  will  be  seen  that  this  rule  should  not  be  universal  or  with- 
out exception,  for  it  may  be  that  he  has  been  prevented  from 
making  full  delivery  of  the  goods  because  of  some  fault  of  the 
shipper  or  the  consignee.  And  where  the  carrier  had  carried 
a  cargo  of  coal  to  the  place,  of  destination  and  offered  to  de- 
liver it,  but  the  owner  was  not  ready  to  receive  it,  and  it  was 
left  on  board  the  plaintiff's  vessel,  which,  after  waiting  several 
days  for  an  opportunity  to  discharge  her  cargo,  was  carried 
away  by  a  freshet  and  her  cargo  lost  overboard,  so  that  it 
could  not  be  delivered  to  the  owner,  it  was  held  that  the 
plaintiff's  contract  as  a  carrier  had  been  performed,  and  he 
was  entitled  to  recover  the  stipulated  freight,  being  liable 
onl}^  for  the  want  of  ordinary  care  after  the  offer  to  deliver.^ 

But  where  the  carrier  was  prevented  from  delivering  the 
freight,  Avhich  by  law  he  was  bound  to  deliver,  because  of  the 
act  of  God,  it  has  been  held  that  even  in  such  case  he  could 
only  recover  for  the  freight  actually  delivered,  the  court  say- 
ing: "He  (the  carrier)  was  therefore  excused  from  delivering 
that  part  of  the  cargo  which  was  destroyed  by  inevitable  ne- 
cessity, but  he  could  recover  freight  only  for  that  portion  de- 
livered. As  to  the  freight  destroyed,  the  owner  must  lose  the 
goods  and  the  carrier  the  freight."' 

1  Hutchinson  on  Carriers,  sec.  443;  of  all  of  the  property  shipped,  the 
The  Success,  7  Blatch.  551.  In  Hins-  delivery  of  the  whole  will  be  a  con- 
dell  V.  Weed,  5  Denio,  172,  where  the  dition  precedent  to  tlie  recovery  of 
carrier  contracted  to  carry  flour  from  the  freight  against  the  consignee, 
Buffalo  to  Albany,  and  in  the  course  thougli  he  accept  and  receive  a  part, 
of  the  trip  he  lost  part  of  the  flour  and  that  the  consignee  might  re- 
and  sold  his  boat,  the  remainder  of  coup  the  damages  on  account  of  the 
the  cargo  being  on  hand,  it  was  property  not  delivered  in  the  action 
held:  "If  the  directions  of  the  con-  against  him  for  freight." 
Bignors  to  the  consignee,  as  contained  ^Clandaniel  v.  Tuckerman,  17 
in  or  annexed  to  the  bill  of  lading.  Barb.  184. 

be  to  pay  freight  only  on  the  delivery  » Price  v.  Hartshorn,  44  Barb.  655, 

535 


§§  539,  540.]  CAKEIEKS.  [PAET   T. 

Where  a  carrier  carried  goods  to  a  particular  place  under 
a  contract,  but,  before  the  owner  had  an  opportunity  to  receive 
them,  a  part  of  them  were  lost  without  the  fault  of  the  carrier, 
it  was  held  that  the  carrier  was  not  entitled  to  any  compensa- 
tion for  the  carrying  of  the  goods  lost.^  And  Avhere  by  con- 
tract the  shipper  assumed  all  risk  and  loss  of  its  property  by 
fire  while  in  charge  of  the  carrier,  it  was  held  that  the  carrier 
was  not  entitled  to  recover  freight  or  property  destroyed  by 
fire  before  delivery  to  the  consignee.^ 

§  539.  Carrier's  special  security  in  and  right  to  possession 
of  goods. —  The  carrier,  it  will  be  remembered,  is  the  bailee  of 
the  goods  delivered  to  him  for  transportation;  and  more  than 
that,  having  accepted  them  for  carriage,  and  having  performed 
service  in  that  respect,  he  has  a  special  interest  in  the  goods  at 
least  to  the  extent  of  his  service,  and  so  has  a  right  to  the  pos- 
session of  the  property,  and  while  so  possessing  it  as  a  carrier 
and  bailee  may  defend  his  possession  against  any  one  who 
undertakes  to  deprive  him  of  it  in  violation  of  his  bailment 
rights,  even  against  the  owner  himself  if  he  should  take  it 
from  him  without  discharging  the  carrier's  lien  for  compen- 
sation, or  in  violation  of  his  rights  under  his  contract  for  car- 
riage,* 

§  540,  Carrier  may  protect  his  possession. —  The  car- 
rier is,  during  the  time  the  goods  are  in  his  possession  as  car- 
rier, subrogated  to  all  the  rights  of  the  owner  so  far  as  caring 
for  the  goods  and  having  the  right  to  defend  the  possession  of 
them;^  and  so  if  the  goods  are  stolen  or  injured  the  law  will 
recognize  this  right  in  the  carrier  to  protect  them.  If  stolen, 
ownership  of  the  goods  by  the  carrier  may  be  alleged  in  the 
indictment  for  larceny.^  The  carrier  may  recover  the  posses- 
sion if  wrongfully  taken  from  him  by  replevin  or  trover,  and 

668;  affirmed,  44  N.  Y.  94, 4  Am.  Rep.  ard  Oil  Co.,  20  Hun  (N.  Y.),  39;  af- 

645;  Harris  v.   Rand,  4  N.  H.   259.  firmed,  87  N.  Y.  486. 

Where  a  part  of  a  cargo  of  salt  was        ^  Story  on  Bailm.,  sec.  303;  Young 

lost  by  inevitable  accident,  it  was  v.  Kimball,  23  Pa.  St.  193;  Van  Baalen 

held  that  the  carrier  could  not  col-  v.  Dean,  37  Mich.  104. 

lect  for  the  portion  delivered.  *  Hagerstown  Bank  v.  Express  Co., 

1  Russell  Mfg.  Co.  v.  New  Haven  45  Pa.  St.  419. 
S.  S.  Co.,  52  N.  Y.  657;  McKee  v.         5  story  on  Bailm.,  sec.  93/;  Merrick 

Hecksher,  10  Daly,  393.  v.  Brainard,  38  Barb.  574, 

2N.  Y.  Cent.  &  H.  R.  Co.  v.  Stand- 

536 


CH.  X.]  COMPENSATION    AND    LIEN    OF    CAEKIEK.       [§§  541,  542. 

it  is  said  in  an  action  of  trover  he  will  be  permitted  to  recover 
a  judgment  for  the  full  value  of  the  goods  claimed,  and  to  re- 
tain in  his  own  right  the  amount  due  for  his  services  and  hold 
the  balance  in  trust  for  the  owner.^  If  the  goods  have  been 
lost  and  the  owner  has  recovered  of  the  carrier  for  the  value 
of  the  goods,  the  carrier  is  entitled  to  the  full  amount  he  may 
recover  from  the  person  or  persons  who  deprived  him  of  them, 
and  in  such  case  the  carrier  becomes  the  owner  and  succeeds 
to  all  the  rights  and  privileges  of  the  owner.  Indeed,  he  be- 
comes the  equitable  assignee  of  the  owner  of  the  property.- 

§  541. The  carrier  may  insure  the  goods. —  The  in- 
terest of  the  carrier  is  sufficient,  and  to  that  extent  he  may  in- 
sure the  goods  not  only  for  the  amount  of  his  special  prop- 
erty in  them,  but  for  the  full  amount  of  the  property.  It  has 
been  held  that  where  the  carrier  has  obtained  insurance  upon 
the  property  for  the  full  amount  and  the  property  is  lost  by 
fire,  he  may  recover  the  amount  of  the  insurance  although  he 
had  by  contract  limited  his  liability  to  the  extent  that  he  was 
not  to  be  liable  if  lost  by  fire.  But  in  such  case  the  whole 
amount  of  insurance  over  and  above  the  amount  due  the  car- 
rier for  compensation  inures  to  the  benefit  of  the  owner.'  But 
the  carrier  could  not  insist  upon  the  owner  insuring  the  goods 
as  a  condition  precedent  to  his  receiving  them  for  carriage,  be- 
cause that  would  be  antagonistic  to  the  rule  that  the  carrier 
must  receive  and  carry  freight  for  all  who  apply,  if  the  freight 
offered  is  in  the  line  of  his  business.* 

§  542,  When  can  the  carrier  sell  the  goods. —  To 

satisfy  his  lien  the  carrier  cannot  sell  the  goods  except  as  au- 
thorized by  law.  In  most  of  the  states  a  foreclosure  of  the 
lien  is  provided  by  statute,  and  in  such  case  the  statute  must 
be  followed.  There  are  circumstances,  however,  when  the 
carrier  is  not  only  permitted  to  sell  but  it  is  his  duty  to  sell 
the  goods;  not  because  of  an  unsatisfied  lien  for  his  com- 

1  IngersoU  v.  Van  Bokkelin,  7  Cow.  Tex.  475;  Waring  v.  Indemnity  Ins. 
670;  Strong  v.  Adams,  30  Vt.  221;  Co.,  45  N.  Y.  60G;  Eastern  R.  Co.  v. 
Hutch,  on  Carriers,  sec.  426.  Relief  Ins.  Co.,  98  Mass.  420;    Com- 

2  Hagerstown  Bank  v.  Expi-ess  Co.,  monwealth  v.  Hide  &  Leather  Co., 
45  Pa.  St.  49;  White  v.  Webb,  15  Conn.  112  Mass.  136,  7  Excli.  323. 

302;  Hickok  v.  Buck,  22  Vt.  149;  Lit-  Unman  v.  South  Car,  Ry.  Co.,  129 
tie  V.  Fosset,  34  Me.  545.  U.  S.  128. 

^  Insurance  Co.  v.  Railroad  Co.,  63 

537 


I  542.]  CARRIERS.  [part   V. 

pensation,  but  because  of  bis  duty  to  use  diligence  in  promoting 
the  best  interests  of  the  owner  while  the  property  is  under  his 
control,  and  to  this  end  he  is  bound  to  dispose  of  the  goods  to 
the  best  advantage;  as,  for  example,  when  the  carrier  cannot 
carry  the  goods  to  their  destination,  or  obtain  them  to  be  car- 
ried because  of  disaster  to  his  ship  while  at  sea,  or  under  cir- 
cumstances when  he  is  rendered  helpless  as  to  the  carrying  of 
the  property  —  as  where  the  goods  are  perishable  and  will 
not  last  to  be  carried  to  their  destination.  In  such  case  the 
carrier  may  sell  the  goods  to  the  very  best  advantage.  It  is 
said,  however,  that  he  should  sell,  if  possible,  where  there 
will  be  competition;  but  if  he  cannot  do  so  it  is  his  duty  to 
communicate  to  the  owner  of  the  property  before  he  makes 
such  sale.^  The  law  demands  that  there  must  be  the  utmost 
fairness  in  such  cases  on  the  part  of  the  carrier.  His  conduct 
will  at  all  times  be  open  to  investigation  of  the  owner  and  by 
the  court;  and  even  if  the  owner  accepts  the  amount  received 
by  the  carrier  upon  such  sale  of  the  goods,  this  will  not  pre- 
clude him  from  disputing  the  claim  of  the  carrier  where  he 
has  not  consented  to  the  sale;  nor  will  it  preclude  him  from  a 
further  recovery  in  case  of  fraud  or  unfair  dealing  or  negli- 
gence on  the  part  of  the  carrier.  The  rule  is  discussed  in  the 
cdi'&e)  oi  The  Julia  Blake,  SihoYe  cited.  The  court  say:  "The 
master  can  neither  sell  nor  hypothecate  the  cargo,  except  in 
case  of  urgent  necessity,  and  his  authority  for  that  purpose  is 
no  more  than  may  reasonably  be  implied  from  the  circum- 
stances in  which  he  is  placed.  He  acts  for  the  owner  of  the 
cargo  because  there  is  a  necessity  for  some  one  to  do  so,  and, 
like  every  agent  whose  authority  arises  by  implication  of  law, 
he  can  only  do  what  the  owner,  if  present,  ought  to  do.  Ne- 
cessity develops  his  authority  and  limits  his  powers.  "What  he 
does  must  be  directly  or  indirectly  for  the  benefit  of  the  cargo, 
considering  the  situation  in  which  it  has  been  placed  by  the 
accidents  of  the  voyage.  As  was  said  by  Sir  "William  Scott  in 
The  Gratitudine,'  by  which  the  power  of  the  master,  under 

1  Hall  V.  Ocean  Ins.  Co.,  37  Fed.  The  Ship  Active,  2  Wash.  C.  C.  228, 
371:  The  Julia  Blake.  107  U.  S.  418.     237;  The  Packet,  3  Mason.  255,  259; 

-  3  C.  Rob.  240,  261 ;  Duncan  v.  New  England  Ins.  Co.  v.  The  Sarah 
Benson,  1  Exch.  557;  Tlie  Onward,  Ann,  13  Pet.  (U.  S.)  387,  400;  The 
Law  Rep.  4  Ad.  &  Ec.  38,  57;  Ross  v.     Amelie,  6  Wall.  18,  27. 

538 


CH.  X.]  COMPENSATION    AND    LIEN    OF   CAKRIEE.  [§  543. 

proper  circumstances,  to  hypothecate  the  cargo  to  pay  the  ex- 
penses of  repairs  on  the  ship,  was  incontrovertibly  established : 
'In  all  cases  it  is  the  prospect  of  the  benefit  to  the  proprietor 
that  is  the  foundation  of  the  authority  of  the  master.  It  is 
therefore  true  that,  if  the  repairs  of  the  ship  produce  no  ben- 
efit or  prospect  of  benefit  to  the  cargo,  the  master  cannot 
bind  the  cargo  for  such  repairs.  But  it  appears  to  me  that 
the  fallacy  of  the  argument,  that  the  master  cannot  bind 
the  cargo  for  the  repairs  of  the  ship,  lies  in  supposing  that 
whatever  is  done  for  the  repairs  of  the  ship  is  in  no  degree 
and  under  no  circumstances  done  for  the  benefit,  or  with  the 
prospect  of  benefit,  to  the  cargo;  whereas  the  fact  is  that, 
though  the  prospect  of  benefit  may  be  more  direct  and  more 
immediate  to  the  ship,  it  may  still  be  for  the  preservation  and 
conveyance  of  the  cargo,  and  is  justly  considered  as  done  for 
the  common  benefit  of  both  ship  and  cargo.'  " 

§  543.  The  ajiioiint  charged. —  The  amount  of  freight  the 
common  carrier  can  charge,  in  the  absence  of  an  express  con- 
tract fixing  the  amount,  must  of  course  depend  upon  the  cir- 
cumstances of  the  particular  case ;  the  charge  must  be  a  reason- 
able one,  and  is  a  question  for  the  jury;  however,  this  does  not 
mean  that  it  must  be  the  same  in  amount  as  is  charged  to  every 
other  customer  for  the  same  service;  not  that  charges  to  all 
must  be  equal,  but  that  it  must  be  no  more  than  reasonable;  it 
may  be  less,  but  cannot  be  more.  ISTo  one  can  be  charged  an 
excessive  rate;  the  highest  rate  charged  must  be  reasonable. 
This  is  the  common-law  rule  regardless  of  any  statutes  that  have 
been  passed  regulating  charges.^ 

Where  a  railroad  company  compelled  the  plaintiff  to  pay  for 
lumber  shipped  over  its  road  fifty  cents  per  thousand  more  than 
it  charged  another  party  for  transporting  lumber  over  its  road 
at  the  same  time,  it  was  held  by  the  court  "that  all  the  entire 
public  have  the  right  to  the  same  carriage  for  a  reasonable 
price  and  at  a  reasonable  charge  for  the  service  performed ; 
that  the  commonness  of  the  duty  to  carry  for  all  does  not  in- 
volve a  commonness  or  equality  of  compensation  or  charges." 
The  court  further  say:  "All  the  shipper  can  ask  of  a  common 
carrier  is  that  for  the  service  performed  he  shall  charge  no  more 
than  a  reasonable  sum  to  him ;  that  whether  the  carrier  charges 

1  Louisville,  etc.  R  Co.  v.  Wilson,  119  Ind.  352. 
539 


§  543.]  CAEEIEES.  [part   V. 

another  more  or  less  than  the  price  charged  a  particular  indi- 
vidual may  be  a  matter  of  evidence  in  determining  whether  a 
charge  is  too  much  or  too  little  for  the  service  performed,  and 
that  the  difference  between  the  charges  cannot  be  the  measure 
of  damages  in  any  case  unless  it  is  established  by  proof  that 
the  smaller  charge  is  the  true  reasonable  charge  in  view  of  the 
transportation  furnished,  and  that  the  higher  charge  is  excessive 
to  that  degree.  The  obligations  in  this  matter  must  be  recip- 
rocal. Where  there  is  no  express  contract,  the  common-law 
action  by  the  carrier  against  the  shipper  is  for  a  quantum  meruit, 
and  the  liability  of  the  shipper  is  for  a  reasonable  sum  in  view 
of  the  service  performed  for  him.  What  is  charged  another 
person,  or  the  usual  charge  made  against  many  others,  is  matter 
of  evidence  admissible  to  ascertain  the  value  of  the  service  per- 
formed. In  every  case  the  legality  of  the  charge  is  established 
and  measured  by  the  value  of  the  service  performed,  and  not 
by  what  is  charged  another,  unless  what  is  charged  the  other 
is  the  compensating  sura,  in  which  event  it  is  the  proper  sum, 
not  on  account  of  its  equality,  but  because  of  the  relation  it 
bears  to  the  value  of  the  service  performed  as  an  adequate  com- 
pensation therefor.  To  sum  the  whole  matter  up,  the  common 
law  is  that  a  common  carrier  shall  not  charge  excessive  freights. 
It  protects  the  individual  from  extortion  and  limits  the  carrier 
to  a  reasonable  rate,  and  this  on  account  of  the  fact  that  he 
exercises  a  public  emplo3^ment,  enjoys  exclusive  franchises  and 
privileges,  derived,  in  the  case  of  defendant  here,  by  grant  from 
the  state.  The  rule  is  not  that  all  shall  be  charged  equally, 
but  reasonabl}^,  because  the  law  is  for  the  reasonable  charge 
and  not  the  equal  charge.  A  statement  of  inequality  does  not 
make  a  legal  cause  of  action  because  it  is  not  necessarily  un- 
reasonable. It  would  be  a  strange  rule  indeed  which  would 
authorize  a  shipper,  after  being  compelled  to  pay  his  freights 
according  to  established  rates,  to  look  around  and  find  some 
smaller  charge  for  the  same  service  during  the  same  time,  which 
may  be  either  as  a  gratuity  or  a  sale  of  service  at  a  non-com- 
pensating rate,  or  less  than  the  reasonable  charge,  and  claim 
his  damages  according  to  this  difference,  based  Upon  an  in- 
equality not  general  in  its  character,  but  existing  only  by  virtue 
of  a  charge  made  for  the  same  service  against  one  other  per- 
son.   ..     .    .     Whether  a  charge  made  by  A.  against  B.  is  rea- 

540 


CH.  X.] 


COMPENSATION    AND    LIEN    OF    CAREIEE. 


[§  543. 


sonable  cannot  be  determined  by  establishing  the  charge  against 
C.  for  the  same  service.  It  is  too  plain  for  argument  that  the 
higher  charge,  where  there  is  a  difference,  may  be  what  is  the 
compensating  sum,  and  the  lower  charge  may  be  too  small  for 
the  service."^ 


1  Johnston  v.  Pensacola  Ry.  Co.,  16 
Fla.  623,  26  Am.  Rep.  781.  In  this  case, 
which  was  a  case  decided  squarely 
upon  the  common  law,  the  court  has 
cited  and  quoted  from  the  English 
cases  and  also  from  the  American 
cases.  We  have  taken  from  the  opin- 
ion several  citations  and  quotations. 
"In  Peck  V.  North  Staffordshire  R. 
Co.,  decided  in  10  House  of  Lords 
Cases,  in  1863,  Mr.  Justice  Blackburn 
says:  '  A  common  carrier  is  bound  to 
carry  for  a  reasonable  remuneration.' 
In  one  of  the  earlier  cases  upon  the 
subject  it  is  said  that  '  where  there 
is  no  agreement  as  to  price,  the  car- 
rier might  have  a  qiiantnm  ■meruit 
for  his  hire.'  This  means  shnply  that 
he  could  recover  the  value  of  his  serv- 
ice. In  Harris  v.  Packard,  3  Taunt. 
264,  it  is  said:  '  A  carrier  is  bound  by 
law  to  carry  everything  which  is 
brought  to  him  for  a  reasonable  sum 
to  be  paid  to  him  for  the  same  car- 
riage and  not  to  extort  what  he  will.' 
We  cannot  say  that  the  carrier  is 
bound  to  carry  anything  beyond  ar- 
ticles of  such  class  as  he  is  under  a 
legal  obligation  to  carry,  but  it  is 
unquestionably  true  that  his  charge 
must  be  '  reasonable.'  In  the  case  of 
Citizens'  Bank  v.  Nantucket  S.  Co., 
3  Story,  35,  Mr.  Justice  Story,  speak- 
ing of  the  hire  or  recompense  of  com- 
mon carriers,  remarks  that  '  it  may 
be  in  the  nature  of  a  quantum  mer- 
uit.' The  same  view  is  announced 
in  5  Wend.  340,  and  in  5  Wend.  350. 
Says  Parke,  B.,  in  Pickford  v.  Grand 
Junction  R.  Co.,  8  M.  &  W.  378:  'The 
carrier  is  bound  to  receive  the  goods 
on  the  money  being  paid  or  tendered, 
and  the  bailor  to  pay  the  reasonable 
amount  demanded.'  In  2  Steph.  (N.  P.) 


978,  it  is  said  *  common  carriers  are 
bound  to  receive  and  carry  the  goods 
of  the  subject  for  a  reasonable  re- 
ward.' In  1  Duvall,  146.  tlie  court  of 
appeals  of  Kentucky  says :  '  A  com- 
mon carrier  cannot,  like  a  merchant 
or  mechanic,  consult  his  pleasure  or 
caprice  as  to  the  conduct  of  his  busi- 
ness. The  law  makes  it  his  duty, 
when  he  can  conveniently  do  so,  to 
receive  and  carry  goods  for  any  per- 
son whatsoever  for  a  reasonable 
hire.'  .  .  .  That  principle  was  fol- 
lowed up  in  the  case  of  Bolt  v.  Sten- 
nett,  8  Term  Rep.  606;  for  there,  the 
quay  being  one  of  the  public  quays 
licensed  under  the  statute  of  Eliza- 
beth, it  was  held  that  the  owner  was 
bound  to  permit  the  use  of  the  crane 
upon  it,  and  could  not  insist  either 
that  the  public  should  not  use  the 
crane  at  all,  or  should  use  it  only  upon 
his  own  terms,  but  that  he  was  bound 
to  permit  the  use  of  it  upon  reason- 
able terms.'  ...  It  cannot  be 
questioned  that  the  reason  why  a 
common  carrier  is  restricted  to  rea- 
sonable rates  is  the  same  that  causes 
the  limitation  at  common  law  upon 
the  rates  to  be  charged  by  a  wharf- 
inger licensed  under  a  statute.  In 
reference  to  a  railroad  company  it 
may  be  truly  said  that  it  exercises 
a  gita.si-public  employment.  While 
railroads  are  managed  for  private 
benefit  and  the  profits  resulting  from 
their  operation  go  to  individuals,  yet 
they  are  treated  as  merely  a  public 
convenience  and  agency  in  the  mat- 
ter of  state  and  interstate  commer- 
cial intercourse.  It  is  the  public 
character  attached  to  them  which, 
under  certain  circumstances,  author- 
izes taxation  for  their  construction, 


541 


544.] 


CARRIERS. 


[part  Y. 


§  544.  Right  of  carrier  to  collect  its  advances  to  connect- 
ing carriers. —  Custom  and  general  usage,  adopted  by  carriers 
and  generally  understood  and  acquiesced  in  by  the  public,  have 
established  rules  recognized  by  the  courts  as  the  law  governing 
in  such  cases:  that  connecting  carriers  may  advance  to  the 
carrier  from  whom  it  receives  freight  and  collect  of  the  con- 


as  a  tax  for  a  private  purpose  is  un- 
constitutional; and  it  is  the  like  pub- 
lic nature  of  their  functions  which 
enables  them  to  become  the  objects 
of  a  legislative  grant  to  take  the 
property  of  an  individual  for  their 
use,  paying  a  reasonable  compensa- 
tion therefor.  ...  In  the  case  of 
Fitchburg  Ry.  Co.  v.  Gage  et  al.,  13 
Gray,  393,  the  supreme  court  of  Mas- 
sachusetts held  '  that  a  railroad  cor- 
poration is  not  obliged  as  a  common 
carrier  to  transport  goods  and  mer- 
chandise for  all  persons  at  the  same 
rates.'  In  speaking  of  the  common- 
law  rule  that  court  says:  'It  re- 
quires equal  justice  to  all.  But  the 
equality  which  is  to  be  observed  in 
relation  to  the  i^ublic  and  to  every 
individual  consists  in  the  restricted 
right  to  charges  in  each  particular 
case  for  service  a  reasonable  com- 
pensation and  no  more.  If  the  car- 
rier confines  himself  to  this,  no 
wrong  can  be  done  and  no  cause  af- 
forded for  complaint.'  The  claim 
made  in  this  case  arose  out  of  a  dif- 
ference between  the  freights  upon 
plaintiff's  ice  and  the  price  charged 
others  upon  the  same  class  of 
freights.  It  was  not  upon  the  same 
material,  but  the  court  treated  the 
case  as  involving  the  same  principle. 
It  based  its  conclusion  upon  the 
ground  that  the  plaintiff  did  not  set 
out  a  case  of  excessive  or  unreason- 
able charge.  In  the  last  edition  of 
Story  on  Bailments  we  find  tlie  rule 
of  the  common  law  thus  stated:  'At 
common  law  a  common  carrier  of 
goods  is  not  under  any  obligation  to 
treat  all  customers  equally.     He  is 


bound  to  accept  and  carry  for  all 
upon  being  paid  a  reasonable  com- 
pensation. But  the  fact  that  lie 
charges  less  for  one  than  for  another 
is  only  evidence  to  show  that  a  par- 
ticular charge  is  unreasonable,  noth- 
ing more.  There  is  nothing  in  the 
common  law  to  hinder  a  carrier  from 
carrying  for  favored  individuals  at 
an  unreasonably  low  rate  or  even 
gratis.'  In  support  of  this  doctrine 
the  following  cases  are  cited:  13 
Gi-ay,  393;  3  P.  C.  237;  4  C.  B.  (N.  S.) 
78;  12  C.  B.  (N.  S.)  74.  While  the 
text  is  the  reasonable  deduction 
from  remarks  in  these  cases,  still, 
with  the  exception  of  the  case  re- 
ported in  13  Gray,  they  were  cases 
arising  under  statutes.  Most  of  the 
cases  treat  of  the  common-law  rule 
strictly  as  between  the  parties,  and 
without  comparison  as  to  the  charges 
against  others,  the  cases  where  legis- 
lative action  is  being  construed  and 
is  controlling  being  omitted  as  not 
being  in  point.  The  cases  stating  the 
common-law  rule  are  simply  that  the 
charge  must  be  reasonable.  Thus  far 
there  cannot  be  any  reasonable  dif- 
ference between  fair  minds.  In  the 
next  place,  the  right  to  have  the 
service  of  the  common  carrier  at  a 
reasonable  rate  is  common.  Upon 
a  tender  of  a  reasonable  compensa- 
tion, unless  there  is  a  reasonable 
ground  for  his  refusal,  in  case  of  re- 
fusal he  will  be  liable  to  an  action. 
Under  such  circumstances  he  must 
receive  and  carry  all  goods  offered 
for  transportation  by  anj'  person 
whatever  upon  receiving  a  suitable 
hire." 


542 


I 


OH.  X.]  COMPENSATION    AND    LIEN    OF    CARRIER.  [§  544. 

signee  or  shipper  the  amount,  with  its  own  freight  charges 
added,  on  delivery  of  the  goods  to  the  consignee,  provided  al- 
ways that  the  charges  be  reasonable.  This  privilege  seems  to 
be  based  upon  another  theory,  and  it  has  been  held  "  that  a 
common  carrier  through  whose  hands  goods  are  shipped  is  the 
agent  of  the  owner,  and  has  implied  authority  to  advance 
charges  on  the  goods  and  collect  them  again  from  the  next 
carrier  to  whom  they  are  delivered."^  And  where  one  pur- 
chased property  in  New  York,  it  being  agreed  by  the  seller  that 
it  should  be  delivered  in  St.  Louis  for  a  certain  sum  of  money, 
and  it  was  sent  by  the  route  pointed  out  by  the  buyer  over 
several  roads  forming  one  line,  terminating  at  St.  Louis,  the 
last  carrier  paying  the  freight  and  charges  of  all  preceding  car- 
riers, and  demanding  of  the  purchaser  the  amount  they  had  paid 
with  their  own  freight  added,  all  of  which  amounted  to  a  much 
larger  sum  than  that  agreed  upon  by  the  seller,  it  was  held 
that  the  railroad  company  was  entitled  to  recover  the  amount 
demanded.^  But  while  the  connecting  carrier  may  pay  the 
charges  and  freight  upon  the  goods  received  from  the  preced- 
ing carrier,  and  collect,  as  we  have  seen,  from  the  consignee 
or  the  owner,  he  is  not  obliged  to  do  so;  he  may  receive  the 
goods  as  the  agent  of  the  carrier  who  delivered  the  goods  to 
him,  and  collect  the  amount  for  him  of  the  consignee.^ 

1  Armstrong   v.  Chicago,  etc.  Ry.  not  deprive  him  of  such  right."  West- 
Co.,  62  Mo.  App.  639.  ern  Transp.  Co.  v.  Hoyt,  69  N.  Y.  230, 

■i  Wells  V.  Thomas,  27  Mo.  17,  72  25  Am.  Rep.  175. 
Am.  Dec.  228;  Naugatuck  Ry.  Co.  v.        3  in  Oregon  Sliort  Line,  etc.  Co.  v. 

Beardsley  Scythe  Co.,  33  Conn.  218.  Northern   Pac.  R.  Co.,  51  Fed.   465. 

"  A  connecting  carrier  has  authority  it  was  held:    "In    the    absence  of 

to  advance  charges  and  freight  and  any  regulation  by  law  or  custom,  a 

collect  the  same  upon  delivery  of  the  railway  company  receiving  freight 

goods."    Bissell  v.  Pierce,  16  111.  408.  from  a  connecting  line  is  not  required 

And  governs  even  thougli  goods  are  to  advance  or  assume  payment  of  the 

damaged.     Ibid.     Where  a  "  carrier  charges  due  thereon  for  transporta- 

lias  advanced  the  charges  of  an  ante-  tion  from  the  point  of  origin  to  the 

cedent  carrier  who  transported  the  point  of  connection."     Baltimore  & 

goods  under  an    independent    con-  Ohio  Ry.  Co.  v.  Express  Co.,  22  Fed. 

tract,  he  becomes  subrogated  to  the  32.     In  Travis  v.  Thompson,  37  Barb, 

rights  of  the  latter,  and  may  recover  236,   it   was    held:    "A  carrier  tak- 

such  advances  although  he  fails  to  ing  goods  from  a  previous  carrier 

perform  his  own  contract;  and  the  is  not  obliged  to  pay  his  predecessor's 

fact  that  his  bill  of  lading   is  for  charges,  but  may  be  regarded  as  the 

trans[X)rtation    and    delivery    upon  agent  of  his  predecessor  to  collect 

payment  of  freights  and  charges  does  his  lawful  charges." 

543 


§§  545,  546.]  CARRIERS.  [part  v. 

§  545.  Who  is  liable  to  the  carrier  for  the  freight. —  The 

consignee  is  presumed  to  be  the  owner  of  the  goods  and  so  naay 
be  said  to  be  prima  facie  liable  for  the  freight  charges.  But 
this  is  mere!}"  a  presumption  that  may  be  overcome  by  proof. 
If  the  consignee,  however,  accepts  the  goods  from  the  carrier, 
he  becomes  liable  for  the  payment  of  the  freight,  and  the  car- 
rier can.  collect  from  him  the  amount  together  with  other 
charges  that  follow  the  goods.^  ]S"otwithstanding  the  presump- 
tion that  the  consignee  is  the  owner  of  the  goods,  the  carrier 
may  hold  the  shipper  for  the  freight  if  he  chooses  to  do  so, 
even  if  the  shipper  does  not  own  the  goods  and  the  carrier  has 
waived  his  lien.  It  was  the  shipper  who  procured  the  carrier 
to  do  the  service,  and  impliedly  he  assumed  the  payment  of 
the  freight;  and  it  has  been  held  that  he  is  liable  for  the  freight, 
and  is  not  the  less  liable  because  the  consignee  is  also  liable.^ 
§  546.  Where  the  freight  is  only  carried  a  part  of  the  dis- 
tance contracted  for  —  Pro  rata  itineris. —  It  will  be  remem- 
bered that  goods  are  placed  in  the  custody  and  control  of  the 
carrier  only  for  the  purpose  of  being  transported  as  contracted 
for  at  the  time.  The  owner's  right  to  the  goods  is  always  para- 
mount to  that  of  the  carrier;  he  may  take  them  from  the  pos- 
session of  the  carrier  at  any  time,  or  at  any  place  while  in 
transit  before  they  reach  their  destination,  but  in  such  case 
if  the  carrier  has  commenced  the  transportation  and  is  ready 
and  able  to  continue  carrying  the  goods,  and  to  deliver  them 
at  their  destination,  he  is  entitled  to  compensation  for  the  full 
performance  of  the  contract.^  This  is  upon  the  theory  that  the 
carrier  has  a  lien  upon  the  goods  for  the  performance  of  the 
contract  for  transportation  and  so  has  the  right  to  possession 
of  them  for  a  reasonable  time  and  until  the  contract  is  per- 
formed. The  owner  may  waive  his  contract  for  further  trans- 
portation, but  in  order  to  discharge  the  lien  and  deprive  the 

1  Northern  German  Lloyd  v.  Heyle,  (8  Gray),  281 ;  Great  Western  Transp. 

44  Fed  100;  Gates  v.  Ryan,  37  Fed.  Co.  v.  Bagg,  15  Q.  B.  Div.  626;  Story 

154.  on  Bailm.  589;  Holt  v.  Wescott,  43 

^  Wooster  V.  Tarr,  90  Mass.  (8  Allen),  Me.  445;  Minor  v.  Norwich,  etc.  Ry. 

270.  85  Am.  Dec.  163;    Hay  ward  v.  Co.,  32  Conn.  91;  Thomas  v.  Snyder, 

Middleton,  3  McCord  (S.  C),  121;  Gil-  39 Pa.  St.  317;  Hutch,  on  Carriers,  451. 
3on  V.  Madden,  1  Lans.  (N.  Y.)  172;        3 The  Gazelle,  128  U.  S.  474;  Braith- 

Grant  v.  Wood,  21  N.  J.  L.  292,  47  Am.  waite  v.  Powers,  1  N.  Dak.  455,  48  N. 

Dec  162;  Blanchard  v.  Page,  74  Mass.  W.  354. 

544 


CH.  X.]  COMPENSATION    AND    LIEN    OF    CAKKIEE.  [§  54:Y. 

carrier  of  the  right  of  possession  by  reason  of  his  services  and 
contract  for  further  services  the  shipper  must  pay  the  freight 
as  stipulated. 

On  the  other  hand,  the  carrier  may  find  it  impossible  to 
carry  the  freight  to  its  destination  because  of  some  disaster. 
If  the  goods  are  destroyed  by  the  act  of  God  or  the  public 
enemy  while  being  transported  or  before  delivery,  the  carrier 
is  not  entitled  to  payment  of  the  freight.  But  where  goods 
are  not  destroyed  and  the  carrier  is  unable  to  proceed  he  may 
reship  by  some  other  carrier.  If,  in  such  case,  the  original 
carrier  is  compelled  to  pay  a  larger  amount  for  the  continued 
transportation  than  the  original  contract  stipulated  for  the 
entire  shipment,  the  shipper  or  owner  would  be  liable  for  the 
amount  that  is  contracted  to  be  paid,  for  it  would  be  held  that 
the  original  carrier  was  the  agent  of  the  shipper  with  author- 
ity to  make  the  contract,  and  the  owner  or  consignee  would 
be  compelled  to  answer  to  this  contract;  but  he  would,  no 
doubt,  have  redress  from  the  original  carrier  for  the  differ- 
ence. In  such  case  the  original  carrier  would  not  be  entitled 
to  compensation  for  carrying  the  goods  to  the  place  of  disaster. 
But,  on  the  other  hand,  if  the  amount  contracted  to  be  paid 
the  carrier,  who  received  the  freight  by  contract  from  the 
original  carrier  at  the  place  of  disaster,  was  a  less  amount 
than  that  to  be  paid  to  the  former  carrier,  in  such  case  the 
owner,  or  consignee,  or  shipper  would  be  liable  to  pay  the  dif- 
ference to  the  original  carrier.  But  suppose  it  to  be  a  case 
where  the  owner  or  consignee  desired  to  take  possession  of  his 
goods  at  the  place  of  disaster,  believing,  for  example,  that  he 
could  ship  them  to  their  destination  to  a  better  advantage,  or 
that  he  could  sell  them  in  the  market  at  that  place  to  as  good 
an  advantage  as  at  the  destination,  or  for  any  other  reason 
should  desire  to  relieve  the  carrier;  in  such  case  the  carrier 
would  be  entitled  to  a  jpro  rata  compensation,  that  is,  to  such 
a  part  of  the  compensation  as  had  been  fairly  earned.  This  is 
usually  termed  j?ro  rata  itineris. 

%  547.  Where  goods  shipped  against  the  will  of  the  owner, 
as  by  one  not  having  the  right  to  ship. —  The  owner  of  the 
goods  cannot  wrongfully  be  deprived  of  them  or  of  their  pos- 
session; and  so  if  goods  are  stolen  or  have  been  shipped  by  one 
who  had  no  authority  to  ship  them,  in  such  case  the  owner 

35  545 


§  548.]  CARRIERS.  [part    V. 

could  recover  his  goods  from  the  carrier,  and  the  carrier  would 
not  be  entitled  to  compensation  for  their  shipment,  and  should 
the  carrier  refuse  upon  demand  to  deliver  the  property  to  the 
true  owner  he  would  be  liable  in.  an  action  for  conversion. 

As    TO    DlSCRIMIXATION'. 

§  548.  Law  forbidding,  applies  to  all  branches  of  carrier's 
business. — The  law  forbidding  discrimination  applies  to  all 
branches  of  the  carrier's  business ;  this  is  now  generally  regu- 
lated by  statutes  throughout  ail  the  states  and  in  the  United 
States.  The  act  of  congress  regulating  this  is  known  as  the 
Interstate  Commerce  Act.  The  statutes  of  the  states,  as  a  gen- 
eral rule,  but  re-enact  the  established  rules  of  the  common  law 
upon  the  subject. 

Great  stress  is  laid  upon  the  fact  that  common  carriers  are 
to  a  great  extent  servants  of  the  public;  their  franchises  are 
granted  by  the  people,  and  it  is  expected  in  return  that  there 
will  be  no  favors  shown  to  any  class  or  any  branch  of  trade. 
As  has  been  said,  "railroads  are  public  instrumentalities,  and 
the  public  is  concerned  in  the  manner  in  which  their  affairs 
are  managed,  as  well  as  the  service  they  render.  As  common 
carriers  they  are  expected  to  supply  suitable  and  adequate  ac- 
commodations for  the  business  on  their  lines,  and  to  so  per- 
form their  service  as  not  to  afford  preference  to  some  nor  cause 
prejudice  to  others.  They  are  expected  to  do  their  business 
through  their  own  corporate  agencies,  and  not  to  delegate  their 
duties  to  independent  and  often  irresponsible  parties  acting  as 
middle-men  between  the  carriers  and  the  public.  For  continu- 
ous carriage  by  connecting  routes  all  reasonable  facilities  are 
expected  to  be  afforded.  In  short,  railroads,  as  the  necessary 
highways  of  the  country,  are  expected  to  keep  in  view  the 
purpose  for  which  their  franchises  Avere  granted,  and,  while 
guarding  their  revenues  with  fidelity  to  their  corporate  inter- 
ests, to  make  the  public  service  their  constant  aim,  and  to  so 
manage  their  affairs  that  the  service  shall  be  impartial  and 
reasonable."  ' 

The  definition  of  a  common  carrier  usually  concurred  in  ex- 
presses the  legal  duty  of  the  carrier  in  this  respect:  "One  who 
holds  himself  out  as  ready  and  willing  to  carry  the  goods  of 

1 3  Int.  St.  Comm.  Comm'n  Rep.  399. 
546 


CH.  X.]  COMPENSATION    AND    LIEN    OF    CARRIER,        [§§  549,   550. 

all  who  may  apply,"  etc.  It  implies  that  all  will  be  treated 
alike,  and  that  there  shall  be  no  discrimination. 

§549,  Relates  to  facilities  for  shipment. —  The  re- 
quirements of  the  law  have  reference  to  all  the  facilities  incum- 
bent upon  the  carrier  to  furnish  —  its  stational  facilities,  dock 
privileges,  the  use  of  warehouses  for  the  delivery  and  receipt 
of  the  goods,  the  use  of  stock  pens  for  the  shipment  of  animals, 
the  furnishing  of  cars  or  boats  for  the  transportation  of  the 
goods,  and  the  motive  power  for  drawing  the  trains  as  well  as 
rates  for  carriage.  As  the  carrier  is  bound  to  furnish  all  these 
facilities,  he  is  legally  bound  to  furnish  them  without  unjust 
and  undue  discrimination. 

"At  common  law,"  says  an  eminent  jurist,  "common  car- 
riers were  held  to  be  persons  who  exercised  their  calling  for 
the  public  good  upon  equal  terms  and  with  the  same  facilities 
to  all  their  customers.  They  could  not  lawfully  exercise  their 
calling  by  granting  advantages  to  one  customer  which  they 
denied  to  another,  but  were  held  to  the  duty  of  serving  all 
alike.  Their  calling  is  one  public  in  its  nature,  and  the  com- 
mon law  exacted  of  them  a  strict  impartiality  in  their  deal- 
ings with  the  public."^ 

§  550.  The  discrimination  that  is  forbidden. — As  has  been 
said,  discrimination  does  not  mean  merely  unequal  rate  charges; 
the  carrier  may  charge  one  customer  a  less  rate  than  is  deter- 
mined to  be  a  reasonable  rate,  and  which  is  charged  to  another 
customer.  The  vice  that  is  aimed  at  is  a  partiality  that  will 
affect  trade  and  create  and  nourish  monopolies.  As,  for  ex- 
ample, where  competition  is  sharp  among  dealers  in  a  certain 
commodity,  a  partiality  as  to  furnishing  facilities  for  shipment 
or  rates  extended  to  a  certain  dealer  or  company  might  be 
sufficient  to  create  a  monopoly  for  the  favored  dealer  and  drive 
all  others  from  the  trade.  It  is  this  unjust  or  oppressive  par- 
tiality that  favors  one  at  the  expense  of  others  that  the  law 
forbids.  As  said  by  Judge  Elliott:  "It  is  safe  to  say  that  the 
rule  is  that  a  railroad  carrier,  so  far  as  concerns  the  receipt  and 
transportation  of  goods,  however  it  may  be  as  to  rates  of  freight, 

1  Fitzgerald  v.   Grand  Trunk  Ry.    68  Pa.  St  370;  McDuffie  v.  Railway- 
Co.,  63  Vt.  1G9,  13  L.  R.  A.  70;  Mes-    Co.,  53  N.  H.  430;   New  England  v. 
senger  v.  Pa.  Ry.  Co.,  36  N.  J.  L.  407;     Railway  Co.,  57  Me.  188. 
Audenreid  v.  Philadelphia  Ry.  Co., 

547 


§  550.]  CARKIEES.  [PAET   V. 

must,  where  the  conditions  and  circumstances  are  identical, 
treat  all  shippers  alike.  It  cannot  furnish  facilities  to  some 
shippers  and  deny  them  to  others  unless  there  is  a  difference  in 
condition  or  circumstances  such  as  makes  the  discrimination  a 
just  one."  ^ 

In  a  case  in  Pennsylvania  ^  involving  the  question  of  viola- 
tion of  the  statute  and  constitution  of  the  state,  which  is  but 
a  re-enactment  of  the  common-law  rule,  the  court  say:  "It 
(the  law)  prohibits  only  discrimination  which  is  undue  or  un- 
reasonable, and  the  prohibited  discrimination  is  further  limited 
by  the  consideration  that  it  must  be  '  for  a  like  service  from 
the  same  place  upon  like  conditions  and  under  similar  circum- 
stances.' "  It  has  been  said  that  "  a  railroad  company  is  an 
improved  highway  and  the  public  are  equally  entitled  to  its 
use;  it  must  provide  equal  accommodations  for  all  upon  the 
same  terms."  ^ 

And  in  Louisville,  etc.  By.  Co.  v.  Wilson.!^  it  is  said  by  the  su- 
preme court  of  Indiana:  "Eailroad  companies  are  granted 
charters  and.  are  given  the  rights  of  eminent  domain  because 
when  the  roads  are  constructed,  though  owned  by  the  corpo- 
ration, they  are  nevertheless  for  public  use,  and  are,  in  a  qual- 
ified sense,  public  highways.  Everyone  constituting  a  part  of 
the  public  for  whose  use  they  are  constructed  is  entitled  to  an 
equal  and  impartial  participation  in  the  use  of  the  facilities 
for  transportation  which  they  afford.  While  power  to  fix  rates 
is  conferred  upon  them  by  law,  such  rates  are  always  open  to 
investigation  by  the  courts;  for  it  is  an  elementary  rule  that 
common  carriers  can  charge  no  more  than  a  reasonable  com- 
pensation for  the  services  performed.  While  it  is  true  that 
there  is  apparently  some  conflict  in  the  authorities,  the  princi- 
ples here  announced  we  think  are  supported  by  the  weight  of 
authority."^ 

1  Elliott  on  Railroads,  1468;  Little  5  Root  v.  Long  Island  R  Co.,  11^ 
Rock,  etc.  R.  Co.  v.  Oppenheimer,  eta  N.  Y.  300,  4  L.  R  A.  331;  New  Eng. 
Co.,  64  Ark.  271,  44  L.  R  A.  853.  Exp.   Co.   v.  Maine   Cent.   R  Co.,  57 

2  Hoover  et  aL  v.  Pa.  Ry.  Co.,  156  Me.  188;  Scofield  v.  Lake  Shore  &  M. 
Pa.  St.  220,  23  L.  R  A.  263.  S.  R  Co.,  43  Ohio  St.  617,  54  Am.  Rep. 

3  State  V.  Cincinnati,  N.  O.  etc.  Ry.  846;  Sandford  v.  Catawissa.  W.  &  E. 
Co.,  47  Ohio  St.  130,  7  L.  R  A.  319.  R  Co.,  24  Pa.  St.  378,  64  Am.  Dec. 

*  Louisville,  etc.  Ry.  Co.  V.  Wilson,  676:  Hays  v.  Pennsylvania  Co.,  12 
132  Ind.  517,  18  L.  R  A.  105.  Fed.  309;   Attorney-General  v.  Chi- 

548 


CH.  X.]  COMPENSATION    AND    LIEN   OF   OAEKIEK.  [§  551. 

A  writer  on  railway  law  thus  expresses  the  general  rule: 
"  Eailways  are  held  to  the  strictest  impartiality  in  the  conduct 
of  their  business,  in  withholding  all  privileges  or  preferences 
from  one  customer  which  are  not  extended  to  all  others."  ^ 

"The  hinge  of  the  question,"  says  a  learned  judge,  "is  not 
found  in  the  single  fact  of  discrimination,  for  discrimination 
without  partiality  is  inoffensive,  and  partiality  exists  only  in 
cases  where  advantages  are  equal,  and  one  party  is  unduly 
favored  at  the  expense  of  another  who  stands  upon  an  equal 
footing."- 

§  551.  Regulation  by  statute  of  states. —  This  ques- 
tion of  discrimination  has  received  the  attention  of  almost  all 
the  state  legislatures,  and  statutes  have  been  generally  passed 
regulating  the  matter  of  furnishing  facilities  and  freight  rates ; 
but  these  statutes,  of  course,  are  only  local  to  the  states  where 
they  are  enacted,  and  could  not  be  of  any  force  beyond  the 
borders  of  such  states.  And  so  the  remed}'-  was  not  sufficient, 
and  the  result  was  that  out  of  the  very  intent  to  regulate  often 
came  confusion.  With  the  establishing  of  great  trunk  lines 
reaching  across  many  states,  and  all  under  one  management, 
came  a  disregard  of  the  requirements  of  these  laws;  the  ques- 
tion of  the  jurisdiction  of  the  courts  became  a  serious  one,  and 
often  damaging  partiality  was  shown  to  certain  shippers  to  the 

cago  &  N.  W.  R.  Co.,  35  Wis.  426;  Kansas  Pac.  R.  Co.,  13  Colo.  181,  5  L. 

Samuels  v.  Louisville  &  N.  R.  Co.,  R.  A.  480;  Spofford   v.  Boston  &  M. 

31  Fed.  57;  Providence   Coal  Co.  v.  R.  Co.,  128  Mass.  326;  Fitchburg  R. 

Providence    &  W.  R.  Co.,   1   Inter.  Co.  v.  Gage,  12  Gray,  393;  Johnson 

Com.  Rep.  363.  v.  Pensacola,  etc.  R.  Co.,  16  Fla.  632; 

1 1  Wood,  Railway  Laws,  565.  Ragan  v.  Aiken,  9  Lea,  609,  42  Am. 

2  Cleveland,  C.  &  L  Ry.  Co.  v.  Clos-  Rep.  684;  McDuffie  v.  Portland  &  R. 

ser,  126  Ind.  348,  9  L.  R  A.  754,  the  Co.,  52  N.  H.  430,  13  Am.  Rep.  72; 

court  in  the  above  case  citing  Eng-  Hersh  v.  Northern  Cent.  R.  Co..  74 

lish  cases  said  to  support  this  gen-  Pa.  St.  181;  Christie  v.  Missouri  Pac. 

eral  doctrine;   Garton    v.  Bristol  &  R.  Co.,  94  Mo.  453,  13  West.  688;  Chi- 

E.  R.  Co.,  1  Best  &  S.  112;  Hozier  v.  cago  &  A.  R.  Co.  v.  People,  67  111.  1; 

Caledonian  R.  Co.,  1  N.  &  McN.  29;  Erie  &  Pac.  Desp.   v.  Cecil,  112  111. 

Great  Western  R.  Co.  v.  Sutton,  L.  185:  Root  v.  Long  Island  R.  Co.,  114 

R.  4  H.  L.  238;  Ransome  v.  Eastern  N.  Y.  300,  4  L.  R.  A.  331;  Stewart  v. 

Counties  R.  Co.,  1  N.  &  McN.  45;  Ox-  Lehigh  Valley  R.  Co.,  38  N.  J.  L.  505; 

lade  V.  Northeastern  R.  Co.,  id.  72,  1  Union  Pac.  R.  Co.  v.  United  States, 

C.  B.  (N.  S.)  454;  Bellsdyke  v.  North  117  U.  S.  355;  Interstate  Commerce 

British  R.  Co.,  2  N.  &  McN.  105.    The  Com.  v.  Baltimore  &  O.  R.  Co.,  8  R. 

American  cases  seem  to  flow  in  the  R.  &  Corp.  L.  J.  343,  3  Inter.  Com. 

same    general    channel.     Bayles    v.  Rep.  192. 

549 


§  552.]  CARKIERS.  [PAET   V. 

great  detriment  of  others,  and  in  the  state  courts  there  seemed 
to  be  no  redress.  So  great  was  the  need  of  correcting  the 
evils  in  both  freight  and  passenger  traffic  that  the  congress  of 
the  United  States  passed  "An  act  to  regulate  commerce,"  which 
was  approved  February  4,  18S7. 

§  552.  The  interstate  commerce  act. —  The  first  section  of 
the  act  gives  an  idea  of  its  object  and  scope.  It  is  as  follows: 
"Be  it  enacted  by  the  senate  and  house  of  representatives  of 
the  United  States  of  America  in  congress  assembled,  that  the 
provisions  of  this  act  shall  apply  to  any  common  carrier  or 
carriers  engaged  in  the  transportation  of  passengers  or  prop- 
erty wholly  by  railroad,  or  partly  by  railroad  and  partly  by 
water  when  both  are  used,  under  a  common  control,  manage- 
ment or  arrangement,  for  a  continuous  carriage  or  shipment 
from  one  state  or  territory  of  the  United  States,  or  the  District 
of  Columbia,  to  any  other  state  or  territory  of  the  United  States 
or  the  District  of  Columbia,  or  from  any  place  in  the  United 
States  to  an  adjacent  foreign  country,  or  from  any  place  in  the 
United  States  through  a  foreign  country  to  any  other  place  in 
the  United  States,  and  also  to  the  transportation  in  like  man- 
ner of  property  shipped  from  an}^  place  in  the  United  States 
to  a  foreign  country  and  carried  from  such  place  to  a  port  of 
trans-shipment,  or  shipped  from  a  foreign  country  to  any  place 
in  the  United  States  and  carried  to  such  place  from  a  port  of 
entry  either  in  the  United  States  or  an  adjacent  foreign  coun- 
try: Provided,  however,  that  the  provisions  of  this  act  shall 
not  apply  to  the  transportation  of  passengers  or  property,  or 
to  the  receiving,  delivering,  storage  or  handling  of  property, 
wholly  within  one  state,  and  not  shipped  to  or  from  a  foreign 
country  from  or  to  any  state  or  territory  as  aforesaid.  The 
term  'railroad'  as  used  in  this  act  shall  include  all  bridges  and 
ferries  used  or  operated  in  connection  with  any  railroad,  and 
also  any  road  in  use  by  any  corporation  operating, a  railroad, 
whether  owned  or  operated  under  a  contract,  agreement  or 
lease;  and  the  term  '  transportation '  shall  include  all  instru- 
mentalities of  shipment  or  carriage.  All  charges  made  for 
any  service  rendered  or  to  be  rendered  in  the  transportation 
of  passengers  or  property  as  aforesaid,  or  in  connection  there- 
with, or  for  the  receiving,  delivering,  storage  or  handling  of 
such  property,  shall  be  reasonable  and  just;  and  every  unjust 

550 


CH.  X.]  COMPENSATION    AND    LIEN    OF    CARRIEK.  [§  552. 

and  unreasonable  charge  for  such  service  is  prohibited  and 
declared  to  be  unlawful." 

The  act  defines  under  what  circumstances  and  conditions  a 
common  carrier  shall  be  deemed  guilty  of  unjust  discrimina- 
tion, and  such  discrimination  is  prohibited  and  declared  to  be 
unlawful  It  declares  it  to  be  unlawful  for  any  common  car- 
rier subject  to  the  provisions  of  the  act  to  enter  into  any  con- 
tract, agreement  or  combination  with  any  other  common  car- 
rier or  carriers  for  the  pooling  of  freight  of  different  competing 
roads,  or  dividing  aggregate  or  net  proceeds  of  the  earnings 
of  such  roads.  It  makes  it  incumbent  upon  every  common 
carrier  to  print  and  keep  for  public  inspection  schedules  show- 
ing the  rates  and  fares  and  charges  for  the  transportation  of 
passengers  and  property  which  any  such  common  carrier  has 
established  and  which  are  enforced  at  the  time  upon  its  road ; 
providing  as  to  how  advances  maybe  made  in  freight  rates,  re- 
quiring the  filing  of  such  schedules  of  rates,  fares  and  charges 
with  the  commission  which  is  provided  by  the  act. 

The  whole  matter  of  the  regulation  of  freight  and  passen- 
ger carriers  by  railroads  is  placed  in  the  hands  of  a  commis- 
sion provided  for  by  the  act  known  as  the  Interstate  Commerce 
Commission,  and  this  commission  is  given  authority  to  investi- 
gate all  complaints  that  may  be  made  whenever  such  act  is  vio- 
lated, and  to  report  upon  the  same,  and  the  report  of  the  com- 
mission found  and  published  shall  he  priyna  facie  proof  of  the 
facts  it  contains  and  conclusion  arrived  at,  and  will  be  so  taken 
in  any  court  of  the  United  States  in  proceedings  with  refer- 
ence to  said  complaint. 

It  also  provides  that  when  the  carrier  against  whom  the 
commission  has  found  in  its  report  fails  to  obey  the  judgment 
pronounced,  the  commission  or  any  person  interested  may 
proceed  in  any  of  the  circuit  courts  of  the  United  States  by  a 
summary  proceeding  provided  for  in  the  act  to  compel  com- 
pliance with  the  finding  of  the  commission.  It  also  provides 
"  that  the  act  shall  not  apply  to  the  carriage,  storage,  or  hand- 
ling of  property  free  or  at  reduced  rates  for  the  United  States, 
state,  or  municipal  governments,  or  for  charitable  purposes,  or 
to  or  from  fairs  and  expositions  for  exhibition  thereat,  or  the 
issuance  of  mileage,  excursion,  or  commutation  passenger  tick- 
ets; nothing  in  this  act  shall  be  construed  to  prohibit  any 

551 


§§  553,  554.]  CAKKiERS.  [part  v. 

common  carrier  from  giving  reduced  rates  to  ministers  of  re- 
ligion; nothing  in  this  act  shall  be  construed  to  prevent  rail- 
roads from  giving  free  carriage  to  their  own  officers  and  em- 
ployees, or  to  prevent  the  principal  officers  of  any  railroad 
company  or  companies  from  exchanging  tickets  or  passes  with 
other  railroad  companies  for  their  officers  and  emploj^ees ;  and 
nothing  in  this  act  contained  shall  in  any  way  abridge  or  alter 
the  remedies  now  existing  at  common  law  or  by  statute,  but 
the  provisions  of  this  act  are  in  addition  to  such  remedies." 

The  Lien  of  the  Carrier. 

§  553.  Similar  to  the  lien  of  the  bailee  —  Special,  not  gen- 
eral.—  Generally  the  same  principles  that  have  already  been 
discussed  as  applying  to  the  lien  of  bailees  apply  to  the  lien 
of  the  carrier.  The  common  carrier  has  a  specific  lien  upon 
the  goods  transported  as  security  for  his  compensation  and 
charges.^  The  specific  lien  is  implied,  but  a  general  lien  can 
only  exist  by  special  contract,  and  such  special  contract  will  be 
strictly  construed.^  The  lien  gives  the  carrier  the  right  to  re- 
tain the  possession  of  the  goods  until  the  charges  are  paid,  and 
so  long  as  the  possession  is  retained  by  the  carrier  by  reason 
of  the  lien,  the  consignee,  or  owner,  cannot  deprive  him  of  it. 
Statutes  in  the  different  states  have  provided  for  a  foreclosure 
and  a  sale  to  satisfy  the  lien.  The  carrier  is  not  authorized  by 
the  common  law  to  sell  the  property  either  at  public  or  private 
sale  to  satisfy  the  lien ;  he  can  only  retain  the  same  in  his  pos- 
session until  the  amount  is  paid.  Xor  do  the  statutes  passed 
by  the  several  states  authorize  foreclosure  except  by  public 
sale,  which  must  be  not  only  public  but  entirely  fair  and  open, 
after  proper  notice  and  at  a  proper  place. 

§551.  AVhen  does  the  lien  attach?  —  While  there  seems 
not  to  be  entire  harmony  among  the  authorities  as  to  this  sub- 
ject, nevertheless  as  to  the  principles  involved  there  can  be 
but  little  if  any  dispute.  The  goods  are  in  transit  from  the 
time  they  are  received  by  the  carrier  for  immediate  shipment; 

1  Gracie  v.  Palmer,  8  Wheat.  (U.  S.)  Rep.  393;  Hall  v.  Diamond,  63  N.  H. 
635;  Dyer  V.  Grand  Trunk  Ry.  Co.,  42    465. 

Vt.  441,  1  Am.  Rep.  350;  Barker  v.  2  Pennsylvania  R.  Co.  v.  Oil  Works, 
Havens,  17  Johns.  (N.  Y.)  236,  8  Am.     126  Pa,  St.  485;  Bacharach  v.  Chester 

Freight  Line,  33  Pa.  St  414. 
552 


CH.  X.]  COMPENSATION    AND    LIEN    OF    CAKRIEE.  [§  554. 

from  that  moment  the  extraordinary  liability  of  the  common 
carrier  commences,  and  the  reason  for  giving  to  the  common 
carrier  the  benefit  of  a  lien  to  secure  the  payment  for  his  serv- 
ices is,  among  other  things,  because  he  has  incurred  the  com- 
mon carrier's  liability  —  has  become  an  insurer  of  the  property 
to  be  transported.  So  the  lien  given  the  carrier  as  a  reward 
for  the  extraordinary  liability  should  be  contemporaneous 
with  the  attaching  of  the  responsibility.  The  amount  due  the 
carrier  may  be  large  or  small,  depending  upon  the  amount  of 
service  performed,  but  the  lien  will  attach  at  the  same  time 
the  goods  are  accepted  for  immediate  shipment.  Lord  Camp- 
bell, in  Taylor  v.  Tindall^  expresses  the  opinion  contended  for 
in  the  folio winof  languao;e:  "  It  is  argued  that  there  can  be  no 
lien  on  the  goods  for  freight  not  yet  earned  or  due;  but  when 
the  goods  were  laden  to  be  carried  on  a  particular  voyage 
there  was  a  contract  that  the  master  should  carry  them  in  the 
ship  upon  that  voyage  for  freight;  and  the  general  rule  is  that 
a  contract  once  made  cannot  be  dissolved  except  with  the  con- 
sent of  both  the  contracting  parties.  By  the  usage  of  trade, 
the  merchant,  if  he  redemands  the  goods  in  a  reasonable  time 
before  the  ship  sails,  is  entitled  to  have  them  delivered  back 
to  him  on  paying  the  freight  that  might  become  due  for  the 
carriage  of  them,  and  on  indemnifying  the  master  against  the 
consequences  of  any  bills  of  lading  signed  for  them ;  but  these 
are  conditions  to  be  performed  before  the  original  contract 
can  be  affected  by  the  demand  of  the  goods.  It  would  be 
most  unjust  to  the  owners  and  master  of  the  ship  if  we  were 
to  hold  that  upon  a  simple  demand  at  any  time  the  goods  must 
be  delivered  back  in  the  port  of  outfit." 

Some  of  the  cases  have  held  that  the  lien  attaches  as  soon 
as  the  goods  are  placed  on  board  the  ship ;  others  that  it  does 
not  attach  until  the  voyage  is  commenced.  But  these  opinions 
were  rested  upon  the  ground  that  no  part  is  due  before  the 
commencement  of  the  voyage.     And  so  in  the  earlier  days, 

14  El.  &  Bl.  219.     In   Bartlett   v.  indemnifying  the  party  for  any  dif- 

Carnley,  6  Duer  (N.  Y.  Super.  Ct),  194,  ferences  between  the  value  of  the 

It  was  held  "  that  tlie  freighter  who  goods  at  tlie  port  of  lading  and  what 

removes  goods  once  shipped  with  a  the   master  or  ship-owner   may   be 

bill  of  lading  delivered  can  only  re-  obliged  to  pay  at  tiie  port  of  destina- 

slaim  them  upon  payment  of  freight,  tion  under  such  bill  of  lading." 
necessary  expenses  of  unloading,  and 

533 


§  555.] 


C  A  BRIBES. 


[part  V. 


■when  the  carrier  did  not  hold  out  to  the  public  that  he  would 
receive  and  care  for  the  freight  before  the  hour  for  loading, 
the  rule  might  have  been  different;  but  the  same  principle 
ever  existed  that  when  the  freight  is  received,  and  is  in  the 
control  of  the  carrier  for  immediate  shipment,  the  liability  at- 
taches and  the  lien  exists.  Whether  it  is  received  by  the  car- 
rier in  his  warehouse  for  the  purpose  of  immediate  shipment, 
or  whether  it  is  received  on  board  his  ship,  it  can  make  no  dif- 
ference. It  must  be  clear  that  as  soon  as  the  liability  attaches 
to  the  carrier,  his  lien  attaches  to  the  goods.^ 

§  555.  When  shipment  made  by  one  without  authority. — 
The  carrier  must  obtain  possession  of  the  goods  from  the  owner, 
or  by  his  consent,  either  express  or  implied,  and  if  the  possession 
is  not  thus  obtained,  but  is  wrongful  or  tortious,  even  though 
innocent  on  the  part  of  the  carrier  and  without  fault  or  negli- 
gence of  the  owner,  the  carrier  will  not  have  the  right  to  com- 
pensation for  the  carrying  of  the  goods,  and  therefore  cannot 
have  a  lien  upon  them  for  such  compensation.^  "  There  is  no  case 


1  Bailey  v.  Damon,  3  Gray  (Mass.), 
93. 

2  In  Fitch  &  Gilbert  v.  Newberry 
&  Goodell,  1  Doug.  1,  the  court  say: 
"  On  the  part  of  the  defendants  it  is 
contended  that  a  common  carrier 
who  receives  goods  for  carriage  and 
transports  them  may  detain  them 
by  virtue  of  his  lien,  for  freight, 
even  against  the  owner,  in  case  the 
freight  has  been  earned  without 
fraud  or  collusion  on  his  part;  that, 
if  goods  be  stolen  or  otherwise  tor- 
tiously  obtained  from  the  legal 
owner,  at  New  York  or  elsewhere, 
and  carried  by  a  transportation  line 
from  thence  to  Detroit,  without  a 
knowledge  of  the  theft  on  the  part 
of  the  carrier,  he  would  be  entitled 
to  a  lien  for  freight,  even  against  the 
owner.  This  doctrine  is  sought  to 
be  maintained  by  the  defendants' 
counsel  on  several  grounds:  1.  He 
insists  that  a  common  carrier  is 
bound  to  receive  goods  which  are  of- 
fered for  transportation,  and  to  carry 
them :  that  it  is  not  a  matter  of  choice 


whether  he  will  receive  and  carry 
them  or  not;  that  he  is  liable  to 
prosecution  if  he  refuses.  2.  That  a 
common  carrier  is  not  only  bound  to 
receive  and  transport  goods  that  are 
offered,  but  he  is  liable  for  their  loss, 
in  all  cases,  except  by  the  act  of 
God  and  iiublic  enemies;  and  the 
same  rule,  he  insists,  applies  to  ware- 
housemen and  forwarders.  3.  That 
theduties  and  obligations  of  common 
carriers  and  innkeepers  are,  in  all 
respects,  analogous;  and  an  inn- 
keeper is  bound  to  receive  and  en- 
tertain guests,  and  to  account  for  a 
loss  of  their  baggage  while  under  his 
care.  4.  That  a  common  carrier,  be- 
ing bound  by  law  to  accept  goods 
offered  him  for  carrying,  and  being 
responsible  for  their  safe  delivery  in 
all  cases  except  when  prevented  by 
the  act  of  God  or  public  enemies,  is 
entitled  to  a  lien  for  their  freight, 
against  all  persons,  including  even 
the  owner,  when  the  goods  were  tor- 
tiousiy  obtained  from  him;  that  he 
is  not  bound  to  inquire  into  tiie  title 


554 


CH.  X.] 


COMPENSA.TION    AND    LIEN    OF    CARRIER. 


[§  555. 


to  be  found,  or  any  reason  or  analogy  anywhere  in  the  books, 
which  would  go  to  show  that  the  real  owner  was  concluded  by 
a  bill  of  lading  not  given  by  himself,  but  b}^  some  third  person, 
erroneously  or  fraudulently.     If  the  owner  loses  his  property 


of  the  person  who  delivers  them; 
and  such  lien  exists,  although  there 
be  a  special  agreement  for  the  price 
of  carriage.  5.  That  the  master  is 
not  bound  (nor  his  agent  for  him)  to 
deliver  anj^  part  of  a  cargo  until  the 
freight  and  other  charges  are  paid. 
But  for  the  plaintiflfs  it  is  contended : 
1.  That  liens  are  only  known  or  ad- 
mitted in  cases  where  the  relation 
of  debtor  and  creditor  exists,  so  that 
a  suit  at  law  may  be  maintained  for 
the  debt  which  gives  rise  to  the  lien; 
that  a  lien  is  a  mere  right  to  detain 
goods  until  some  charge  against  the 
owner  be  satisfied.  2.  That  the  de- 
fendant obtained  possession  of  the 
goods  without  authority  from  the 
owners,  either  express  or  implied: 
that  no  legal  privity  exists  between 
the  parties,  and  therefore  the  relation 
of  debtor  and  creditor  does  not  exist 
between  the  defendants  or  their 
principals  and  the  plaintiffs,  and  no 
action  could  be  maintained  by  either 
against  them  for  the  freight,  or  any 
part  of  it.  .  .  .  That  common 
carriers  are  bound  to  receive  goods 
which  are  offered,  by  the  owners  or 
their  agents  for  transportation  and 
to  carry  them  for  a  just  compensa- 
tion, upon  the  routes  which  they 
navigate,  or  over  which  they  convey 
goods  in  the  prosecution  of  their 
business,  is  too  well  settled  to  require 
discussion,  although  this  general 
proposition  is  subject  to  some  qualifi- 
cations. .  .  ,  That  common  car- 
riers are  responsible  lor  the  safe  con- 
veyance and  delivery  of  the  goods 
committed  to  them  for  carriage  is 
just  as  conclusively  settled  as  that 
they  are  bound  to  receive  and  carry 
them.  A  common  carrier  is  said  to 
be  in  the  nature  of  an  insurer,  and  is 

55 


answerable  for  accidents  and  thefts, 
and  even  for  a  loss  by  robbery.  He 
is  answerable  for  all  losses  which  do 
not  fall  within  the  accepted  cases  of 
the  act  of  God,  or  inevitable  acci- 
dent without  the  intervention  of 
man,  and  public  enemies.  .  .  . 
If,  as  contended  for  by  the  defend- 
ants, a  carrier  is  bound  to  receive 
and  carry  all  goods  offered  for  trans- 
portation, without  the  right  of  in- 
quiring into  the  title  or  authority  of 
the  person  offering  them,  then 
clearly  he  -should  be  entitled  to  a 
lien,  even  against  the  owner,  upon 
the  goods,  until  he  is  paid  for  the 
labor  he  may  bestow  in  their  car- 
riage. 

"  Let  us  now  inquire  whether  such 
is  the  law.  The  doctrine  is  certainly 
opposed  to  all  the  analogies  of  the 
law,  and  it  seems  to  me  to  every 
principle  of  common  justice.  The 
only  adjudged  case  I  have  been  able 
to  find  which  favors  it  is  Yorke 
v.  Grenaugh,  2  Ld.  Eaymond,  866. 
That  was  replevin  for  a  gelding. 
The  defendant,  who  was  an  inn- 
keeper, received  the  horse  from  a 
stranger,  who  had  stolen  iiim.  On 
demand  being  made  for  the  horse  by 
the  owner,  the  defendant,  who  was 
ignorant  of  the  theft  when  he  re- 
ceived him,  refused  to  deliver  him 
up  until  paid  for  his  keeping,  insist- 
ing on  his  right  of  lien.  The  court 
held  it  reasonable  that  he  should 
have  a  remedy  for  payment,  which 
was  by  retainer;  and  that  he  was 
not  obliged  to  consider  who  was  the 
owner  of  the  horse,  but  whether  he 
wlio  brought  him  Was  his  guest.  And 
Holt,  C.  J.,  cited  the  case  of  the  Ex- 
eter carrier,  which  he  thus  stated: 
Where  A.  stole  goods  and  delivered 


§  555.] 


CARRIERS. 


[part 


or  is  robbed  of  it,  or  it  is  sold  or  pledged  without  his  consent, 
by  one  who  has  only  a  temporary  right  to  its  use  by  hiring  or 
otherwise,  or  a  qualified  possession  of  it  for  a  specific  purpose. 


them  to  the  Exeter  carrier  to  be  car- 
ried to  Exeter,  the  owner  finding  the 
goods  in  the  possession  of  the  carrier 
demanded  tliem  of  him.  The  car- 
rier refused  to  deliver  them  without 
being  first  paid  for  the  carriage.  The 
owner  brought  ti'over  for  his  goods, 
and  it  was  adjudged  that  the  defend- 
ant might  detain  them  for  the  car- 
riage, on  the  ground  that  the  carrier 
was  obliged  to  receive  and  carry 
them.  Powell,  J.,  denied  the  author- 
ity of  the  Exeter  case,  but  concurred 
with  Chief  Justice  Holt  in  the  decis- 
ion of  the  case  then  under  considei'- 
ation.  There  is  no  obvious  ground 
of  distinction  between  the  cases  of 
carrying  goods  bj'  a  common  carrier 
and  the  furnishing  keeping  for  a 
horse  by  an  innkeeper.  In  the  latter 
case  it  is  equally  for  the  benefit  of 
the  owner  to  have  his  horse  fed  by 
the  innkeeper  in  whose  custody  he 
is  placed,  whether  left  by  a  thief  or 
by  himself  or  agent;  in  either  case 
food  is  necessary  for  the  preserva- 
tion of  his  horse,  and  the  innkeeper 
confers  a  benefit  upon  the  owner  by 
feeding  him.  But  can  it  be  said  that 
a  carrier  confers  a  benefit  on  the 
owner  of  goods  by  carrying  them  to 
a  place  where,  perhaps,  he  never  de- 
signed and  does  not  wish  them  to 
go  ?  .  .  .  The  obligation  of  a  com- 
mon carrier  to  receive  and  carry  all 
goods  offered  is  qualified  by  several 
conditions,  which  he  has  a  right  to 
insist  upon  before  receiving  them: 
1.  That  the  pei'son  offering  the  goods 
has  authority  to  do  so.  2.  That  a 
j  ust  compensation,  or  the  usual  price, 
be  tendered  for  the  carriage.  And 
3.  That,  although  the  owner  or  his 
agent  offer  goods  for  carriage  and 
tender  payment  for  the  freight  in 
advance,  still  he  is  not  bound  to  re- 


ceive them  unless  he  have  the  requi- 
site convenience  to  carry  them.  In 
an  action  brought  against  a  carrier 
for  refusing  to  receive  and  carry 
goods,  would  it  not  constitute  -a  valid 
defense  that  the  plaintiff  had  stolen 
them,  although  at  the  time  of  offer- 
ing the  carrier  may  not  have  known 
they  had  been  stolen?  In  Story  on 
Bailm.,  sec.  582,  it  is  laid  down  that 
a  carrier  is  excused  for  non-delivery 
of  goods  to  the  consignee,  when  they 
are  demanded  or  taken  from  his  pos- 
session by  some  person  having  a  su- 
perior title  to  the  property.  And 
again,  where  the  adverse  title  is 
made  known  to  the  carrier,  if  he  is 
forbidden  to  deliver  the  goods  to  any 
other  person,  he  acts  at  his  peril; 
and  if  the  adverse  title  is  well 
founded  and  he  resists  it,  he  is  liable 
to  an  action  for  the  recovery  of  the 
goods.  If,  then,  the  owner  could  re- 
claim the  goods  at  the  hands  of  the 
carrier,  after  their  delivery  to  him. 
and  that  would  excuse  a  non-deliv- 
ery to  the  depositor,  it  is  clear  that 
he  would  be  justified  in  refusing  to 
receive  then/  from  one  having  a 
wrongful  i^ossession,  although  at  the 
time  of  such  refusal  he  miglit  not 
know  the  manner  in  which  they  had 
been  obtained.  So  a  carrier  is  in  all 
cases  entitled  to  demand  the  price  of 
carriage  before  he  receives  the  goods, 
and,  if  not  paid,  he  may  refuse  to 
take  charge  of  them.  Story  on 
Bailm.,  sec.  586;  5  Barn.  &  Aid.  358; 
4  id.  32;  3  Bos.  &  Pull.  48;  and  Whit, 
on  Liens,  92.  If,  then,  a  common 
carrier  may  demand  payment  for 
carriage  in  advance,  and  if  he  may 
reject  goods  offered  by  a  wrong-doer, 
or  by  one  having  no  authority  to  do 
so,  is  he  not  bound  to  take  care  that 
the  person  froiu  whom  he  receives 


556 


CH.  X.] 


COMPENSATION    AND    LIEN    OF    CAKEIEK. 


[§  555. 


as  for  transportation,  or  for  work  to  be  clone  upon  it,  the 
owner  can  follow  and  reclaim  it  in  the  possession  of  any 
person,  however  innocent,"  was  the  language  of  Fletcher,  J.,  in 


them  has  authority  to  place  them  in 
his  custody? 

"In  Story  on  Bailm.,  sec.  585,  it  is 
said:  A  carrier  having  once  ac- 
quired the  lawful  possession  of  goods 
for  the  purpose  of  carriage  is  not 
bound  to  restore  them  to  the  owner 
again  unless  his  due  remuneration 
be  paid;  evidently  presupposing  the 
goods  to  have  been  delivered  to  him 
by  the  owner;  and  cites  9  Johns.  17; 
3  Johns.  Cases,  9.  In  Lemprier  v. 
Pasley,  2  T.  R.  485,  it  was  held  that 
gcods  wrongfully  delivered  to  the 
person  claiming  them,  who  paid 
freight  and  other  charges,  could  not 
be  detained  for  those  expenses 
against  the  rightful  owner.  In  2 
Kent's  Com.  638,  it  is  laid  down  that 
possession  is  necessary  to  create  the 
lien,  but  though  there  be  possession 
of  goods,  a  lien  cannot  be  acquired 
when  the  party  came  to  that  pos- 
session wrongfully.  So,  if  the  party 
came  to  the  possession  of  goods 
without  due  authority  he  cannot  set 
up  a  lien  against  the  owner,  3  Kent's 
Com.  G38;  5  T.  R.  604;  4  Esp.  R.  174; 
7  East,  5.  In  Buskirk  v.  Purington, 
2  Hall  R.  561,  propertj'  was  sold  upon 
a  condition;  the  buyer  failed  to  com- 
ply with  the  condition,  but  shipped 
the  goods  on  board  the  vessel  of  the 
defendants.  The  owner  claimed  the 
goo.ds,  demanded  them,  and,  on  de- 
fendants' refusal  to  deliver  them, 
brought  trover  for  their  value.  The 
defendants  insisted  on  their  right  of 
lien  for  the  freight,  but  the  plaintiff 
was  allowed  to  recover.  In  Saltus 
v.  Everett,  20  Wend.  275,  the  master 
of  a  vessel,  with  whom  the  defend- 
ant in  error  shipped  goods  from  New 
Orleans  to  New  York,  during  the 
voyage  made  a  new  bill  of  lading  in 
his  own  name  as  owner.     The  goods 


at  New  York  were  sold  to  the  plaint- 
iff in  error,  who  was  ignorant  of  the 
shipmaster's  fraud.  The  owner  (the 
defendant  in  error)  sued  the  pur- 
chaser for  their  value,  or  return. 
Senator  Verplanck,  in  the  opinion 
which  he  delivered  in  the  court  of 
errors,  held  this  doctrine:  'The  uni- 
versal and  fundamental  principle  of 
our  law  of  personal  property  is,  that 
no  man  can  be  divested  of  his  prop- 
erty without  his  own  consent;  and, 
consequently,  that  even  the  honest 
purchaser,  under  a  defective  title, 
cannot  hold  against  the  true  pro- 
prietor.' And  again,  'there  is  no 
case  to  be  found,  or  any  reason  or 
analogy  anywhere  suggested  in  the 
books,  which  would  go  to  show  that 
the  real  owner  could  be  concluded 
by  a  bill  of  ladmg  not  given  by  him- 
self, but  by  some  third  person,  er- 
roneously or  fraudulently.'  Id.  281. 
'If  the  owner  lose  his  property,  or  is 
robbed  of  it,  or  it  is  sold,  or  pledged 
without  his  consent,  by  one  who  has 
only  a  temporary  right  to  its  use,  by 
hirmg  or  otherwise;  or  a  qualified 
possession  of  it,  for  a  specific  pur- 
pose, as  for  transportation  or  for 
work  to  be  performed  upon  it,  the 
owner  can  follow  and  reclaim  it  in 
the  liands  of  any  person,  however  in- 
nocent.'    Id.  282.     .     .     . 

"  Finally,  on  a  full  and  careful  con- 
sideration of  this  case,  we  arrive  at 
the  following  conclusions:  1.  That  a 
common  carrier  is  bound  to  receive 
and  carry  goods,  onl^^  when  offered 
for  carriage  by  their  owner  or  his 
authorized  agent,  and  then  only 
upon  payment  for  the  carriage  in 
advance,  if  required.  2.  If  a  com- 
mon carrier  obtains  the  possession 
of  goods  wrongfully,  or  without  the 
consent  of  the  owner,  express  or  im- 


557 


§  550.]  CAliEIERS.  [part   V. 

Hdhinson  v.  Bciker}  The  rule,  however,  "would  be  different 
where  the  consignor  of  the  property  had  apparent  authority 
from  the  owner  to  ship  the  goods,  for  in  such  case  the  carrier 
would  have  the  right  to  look  to  the  owner  for  his  charges  for 
carriage;  the  relation  of  debtor  and  creditor  would  be  created, 
and  the  carrier  would  have  a  lien  on  the  goods  for  its  charges. 
The  same  principles  would  apply  as  in  cases  of  agency.^ 

§  556.  For  what  charges  will  the  lieu  attach.  In  the  ab- 
sence of  an  express  contract  the  lien  of  the  carrier  will  attach 
to  secure  the  payment  of  all  the  reasonable  charges  for  the 
transportation  of  the  particular  goods  shipped  from  the  point 
of  shipment  to  the  place  of  delivery.  This  would  include  not 
only  the  freight  charges  over  the  initial  carrier's  line,  but,  in 
case  of  through  shipment  over  the  several  different  lines,  the 
charges  advanced  by  each  connecting  carrier  to  the  carrier  from 
whom  it  received  the  freight,  together  with  the  charges  over 
its  own  line  or  lines,  so  that  the  last  carrier  would  be  entitled 
to  a  lien  upon  the  goods  shipped  for  the  freight  charged  for 
the  shipment  over  its  owr.  line,  together  with  the  advances 
made  for  freight  and  charges  over  r.he  lines  from  which  he 
received  the  goods;  and  the  same  rule  would  apply  to  the  car- 
riage of  "reight  by  water.  If  tlie  way-bill,  however,  which 
accompanied  the  freight  shows  that  certain  of  the  charges  have 
been  paid,  the  connecting  carrier  is  held  to  a  knowledge  of 
that  fact  and  cannot  have  payment  of  the  same  charges,  by 
him  advanced,  protected  by  a  lien.  But  where  there  is  no 
joint  tariff  arrangement  —  no  freight  rate  agreed  upon  be- 
tween connecting  carriers,  and  the  initial  carrier  guarantees  a 
certain  through  rate,  which  is  less  than  the  amount  charged 
by  connecting  carriers,  and  the  last  carrier  who  receives  the 
freight  advances  the  charges  to  the  carrier  from  whom  he  re- 
ceives it,  which  amount  added  to  his  own  freight  charges  makes 

plied,  and,  on  demand,  refuses  to  de-  ment  of  the  debt  sought  to  be  en- 
liver  them  to  the  owner,  such  owner  forced  by  the  lien." 
may  bring  replevin  for  the  goods,  or  '  5  Cush.  (Mass.)  141,  51  Am.  Dec. 
trover  for  their  value.  3.  To  justify  54,  citing  Saltus  v.  Everett,  20 
a  lien  upon  goods  for  their  freight,  Wend.  (N.  Y.)  275,  and  discussing 
the  relation  of  debtor  and  creditor  Yorke  v.  Grenaugh,  2  Ld.  Rayni.  867. 
must  exist  between  the  owner  and  ^York  Co.  v.  111.  Cent.  R3'.  Co.,  3 
the  carrier,  so  that  an  action  at  law  Wall.  (U.  S.)  107;  Hutch,  on  Carriers 
might  be  maintained  for  the  pay-  (2d  ed.),  sees.  490,  491. 

558 


CII.  X.]  COMPENSATION    AND    LIEN    OF    CARRIER.  [§  557. 

an  amount  exceeding  that  agreed  upon  by  the  initial  carrier, 
in  such  case  the  last  carrier  will  have  a  lien  for  the  full  amount 
of  charges  advanced  and  his  own  freight  added,  notwithstand- 
ing the  agreement  made  by  the  initial  carrier;  and  if  the  ini- 
tial carrier  had  collected  the  stated  through  rate,  and  it  was 
not  enough  to  cover  the  charges  of  connecting  carriers,  the 
connecting  cai^riers  could  charge  the  difference  and  enforce  a 
lien  against  the  property  to  secure  their  reasonable  charges, 
even  though,  as  stated,  it  should  exceed  the  amount  guaranteed 
by  the  initial  carrier.  This  is  upon  the  theory  that  the  initial 
carrier  is  the  agent  of  the  owner,  or  shipper  of  the  goods,  and 
not  of  the  connecting  carrier.^  In  such  case,  however,  the 
owner,  being  compelled  to  pay  the  difference  between  the 
guaranteed  amount  and  the  amount  charged,  would  have  an 
action,  and  ma}'^  recover  that  difference  from  the  initial  car- 
rier.- But  if  there  has  been  a  previous  agreement  by  the  several 
connecting  carriers  by  which  through  shipments  and  through 
rates  were  established,  and  the  goods  were  shipped  and  the 
rate  guaranteed  according  to  such  agreement,  in  such  case  the 
final  carrier  would  not  be  entitled  to  compensation  in  any 
greater  amount  than  agreed  upon  by  the  initial  carrier,  because 
by  reason  of  such  agreement  the  initial  carrier  would  be  said 
to  be  acting  as  the  agent  of  the  connecting  carrier  rather  than 
as  agent  of  the  shipper.^ 

§  557.  The  contract  for  shipment  must  be  fulfilled. —  The 
law  will  demand  that  the  carrier  keep  his  agreement  as  to  the 
shipment  of  goods.     He  cannot  deliver  the  goods  at  a  different 

1  Schneider  v.  Evans,  25  Wis.  241;  charges  advanced    by  it   to  a  rail- 

Orossan  v.  New  York,  etc.  Ry.  Co.,  road    company   which    trans])orted 

149  Mass.  196.  the  cliattels  froni  the  line  of  tlie  re- 

2 In  Detroit,  etc.  Ry.  Co.  v.  McKen-  ceiving  company  to  its  own."  Moses 

zie,   43  Mich.  609,  it  was  said:  "A  "v.  Port  Townsend  S.  Ry.  Co.,  5  Wash, 

contract  by  a  railroad  company  to  "St.   595,   32   Pac.   488.     And   in    the 

transport,  for  an  agreed  sum.  paid  in  same  case  it  was  held  "that  though 

advance,  chattels  over  its  line  to  a  a  way-bill  showing  prepayment  of 

point  on  the  line  of  another  railroad  the  freight  would  presumptively  af- 

company  with  which  it  has  no  tariff  ford  information  to  each  connecting 

agreement,  does  not  bind  the  latter  carrier  of  tliat  fact,  such  presump- 

company  where  it  has  no  notice  of  tion  is  not  conclusive." 
the  terms  of  such  agreement,  and  it        ^  Evansville,  etc.  Ry.  Co.  v.  Marsh, 

has  a  lien  on  such  cliattels  for  its  57  Ind.  507. 
own  freight  charges,  and  for  freiglit 

559 


§  558.]  CAREIERS.  [PAKT   T. 

dock,  or  to  another  carrier  than  the  one  stipulated,  if  the  de- 
livery results  in  the  loss  of  the  goods,  without  becoming  liable; 
nor  can  he  demand  a  larger  amount  than  that  stipulated  for. 
In  one  case  "  the  master  of  a  vessel  agreed  to  deliver  a  boiler 
and  other  property  at  a  specified  dock  in  the  city  of  Alpena, 
for  one  hundred  dollars.  On  arriving  at  the  dock  he  demanded 
one  hundred  and  fifty  dollars,  and  nine  dollars  dockage,  and 
refused  to  deliver  the  property  until  payment  of  said  sums. 
The  owners  of  the  property  offered  to  pay  the  one  hundred 
dollars  and  the  dockage  charges,  which  offer  was  refused,  and 
the  master  landed  the  property  at  another  dock  in  the  city, 
instructino;  the  custodian  not  to  deliver  the  same  to  the  owners 
except  on  payment  of  the  one  hundred  and  fifty  dollars.  The 
owners  demanded  the  property,  delivery  was  refused,  and  they 
brought  replevin  therefor.  Held,  that  by  failing  to  perform 
his  contract,  no  lien  attached  to  the  propert}^  for  the  freight 
agreed  to  be  paid.  That  a  partial  performance  is  not  sufficient, 
unless  delivery  be  dispensed  with  or  prevented  by  the  owners; 
and  that  the  dockage  charges  having  been  paid  or  tendered, 
the  owners  were  entitled  to  the  possession  of  the  property,  and 
upon  refusal  to  deliver  same,  replevin  would  lie."^ 

§  558.  The  lien,  liow  lost,  satisfied  or  discharged. —  The 
lien  having  once  attached  can  be  retained  in  force  only  by  pos- 
session of  the  property  by  the  carrier.  If  possession  is  volun- 
tarily surrendered  to  the  consignee  or  owner,  or  to  any  other 
person  not  the  agent  or  servant  of  the  carrier,  or  under  his 
control,  the  lien  is  lost.  Of  course,  if  the  possession  is  merely 
given  to  an  agent  of  the  carrier,  or  to  one  of  the  servants,  or 
to  a  person  as  custodian  for  the  carrier  of  the  property,  the 
possession  does  not  change,  but  still  remains  in  the  carrier  and 
the  lien  could  not  be  lost  by  such  a  delivery.  And  then,  too, 
the  carrier  may  surrender  a  part  of  the  goods  to  the  consignee 
and  hold  his  lien  on  the  balance  for  the  whole  amount  of  his 
charges.^     AVhere  a  railroad  company  allowed  the  owner  to 

1  Johnston   v.  Davis,  60  ]\Iich.  56;  charges,  but  has  a  like  lien  for  all 

Hill  V.  Denver,  13  Colo.  35,  4  L.  R  A.  freight  bills  paid  by  it  to  previous 

376;  E%-ans  v.  Chicago,  etc.  Ry.  Co.,  11  connecting  carriers  from  the  initial 

Mo.  App.  463.     "  Held,  a  common  car-  point  of  shipment."  New  York  Cent, 

rier  has  not  only  the  right  to  hold  the  Ry.  Co.  v.  Davis,  158  N.  Y.  674. 
goods  and  enforcea  lien  for  its  freight        2  puHer  v.  Bradlej',  25  Pa.  St.  r20; 

560 


CH.   A'.]  COMPENSATION    AND    LIEN    OF    CARRIER.  [§  558. 

unload  from  its  cars  and  place  in  bins  on  its  premises  a  con- 
signment of  coal,  and  to  carry  away  and  dispose  of  a  part  of 
it,  it  was  held  that  the  carrier  would  not  lose  its  lien  for  its 
freight  and.  charges  upon  what  remained.*  But  where  the  car- 
rier put  his  refusal  to  deliver  the  goods  to  the  owner  upon  the 
ground  that  they  are  not  in  his  possession  at  the  place  where 
a  demand  is  duly  made,  it  was  held  that  he  waived  his  lien 
because  the  denial  of  possession  excused  the  owner  from  mak- 
ing a  tender  of  the  carrier's  charges.-  And  where  goods  were 
forwarded  to  a  commission  merchant  by  a  steamboat,  and  were 
unloaded  and  placed  on  the  wharf,  and  the  bill  of  lading  sent 
to  the  owner,  who  removed  part  of  the  goods  without  paying 
the  freight,  it  was  held  that  these  facts  did  not  amount  to  a 
delivery  of  the  goods  nor  a  waiver  of  the  lien  for  freight,  un- 
less it  was  intended,  of  which  a  jury  is  to  judge.  The  court 
say:  "The  goods,  although  put  out  of  the  steamboat  on  the 
wharf,  were  still  in  the  possession  of  the  agents  of  the  boat,  as 
it  clearly  appeared  from  the  testimony;  and  the  act  of  unload- 
ing a  boat  and  placing  the  merchandise  on  the  wharf  does  not 
indicate  any  intention  to  part  with  the  possession  of  it  until 
the  freight  is  paid.  Indeed,  the  law  is  that  the  officers  cannot 
detain  the  goods  on  board  the  boat  until  the  freight  is  paid, 
as  the  merchant  or  consignee  would  then  have  no  opportunity 
of  examining  their  condition.  It  was  the  duty  of  the  carriers 
to  send  the  bill  of  lading  to  the  consignee,  to  apprise  him  that 
the  goods  had  arrived  and  were  ready  to  be  delivered,  so  that 
he  could  attend  and  examine  their  condition,  pay  the  freight 
due  and  take  them  into  his  possession.  Sending  the  bill  of 
lading  to  him,  therefore,  amounted  to  nothing  more  than  a 
communication  of  the  fact  that  the  goods  had  arrived  and  an 
offer  to  deliver  them  upon  the  payment  of  the  freight.  No 
other  inference  arises  from  the  act;  nor  could  it  justly  create 

Jeffris  V.  Pittsburg,  etc.  R.  Co.,  93  34  N.  Y.  S.  206;  affirmed,  158  N.Y.  674; 

Wis.  250;  Potts  v.  New  York,  etc.  R.  N.  H.  etc.  Co.  v.  Camel,  128  Mass. 

Co.,  131  Mass.  455;  Cliicago,  etc.  R.  104,35  Am.  Rep.  360. 
Co.  V.  Union  Packet  Co.,  38  Iowa,         i  Dane  et  al.  v.  Old  Colony,  etc.  R. 

377.     "Delivery  of  a  portion  of  the  Co..  14  Gray  (Mass.),  143. 
goods  on  which  the  carrier  has  a  lien        ^  Adams  Ex.  Co.  v.  Harris.  120  Ind. 

for  freight  does  not   discharge  the  73,  7  L.  R.  A.  214;  Vinton  v.  Baldwin, 

lien  on  the  portion  not  delivered."  95  Ind.  433;  House  v.  Alexander,  105 

I  New  York  Cent.  &  H.  R.  Co.  v.  Davis,  Ind.  109. 
36                                                5G1 


§  558.]  CARRIERS.  [part   V. 

an  implication  that  the  delivery  of  the  bill  of  lading  was  in- 
tended to  operate  as  a  waiver  of  the  lien  for  the  freight  and  a 
delivery  of  the  possession  of  the  goods  to  the  consignee."  ^ 

So  it  would  appear  that  there  must  be  an  intention  to  de- 
liver the  property,  and  if  the  consignee  should  obtain  the  goods 
from  the  carrier  by  fraud  or  trick,  it  could  not  be  held  to  be  a 
delivery,  and  in  such  case  the  lien  would  not  be  lost.^  But  a 
mere  mistake  upon  the  part  of  the  carrier  in  delivering  the 
property,  as,  for  example,  believing  that  the  consignee  is  respon- 
sible, or  that  he  has  other  security  for  the  payment  of  the 
freight,  would  invalidate  the  lien.  And  where  property  was 
shipped  over  the  carrier's  road  with  directions  to  deliver  it  to 
a  dealer  at  its  destination  upon  his  surrendering  the  bill  of 
lading  therefor,  but  on  its  arrival,  through  the  negligence  of 
the  carrier's  agent,  he  received  the  goods  from  the  warehouse  of 
the  carrier  without  surrendering  or  offering  to  surrender  the 
bill  of  lading  or  pay  the  freight,  and  afterwards  sold  it  to  a 
hona  fide  purchaser,  it  was  held  that  neither  the  shipper  nor 
the  carrier  could  recover  the  goods  from  the  hona  fide  pur- 
chaser.^ And  where  the  carrier  delivered  the  goods  to  an  as- 
signee for  creditors  of  the  consignee,  it  was  held  that  the  lien 
was  not  lost.  The  court  say:  "  A  carrier  has  a  lien  upon  goods 
and  right  of  detention  until  the  freight  is  paid.  If  he  parts 
with  the  possession  out  of  the  hands  of  himself  and  his  agent 
he  loses  his  lien  upon  them.  When  these  goods  were  assigned 
they  were  not  only  for  the  general  creditors  of  Pool,  but  for 
those  who  held  liens  upon  the  property  assigned,  so  the  assignee 
received  the  estate  to  be  distributed  according  to  the  rights  of 
the  parties.  He  was  acting  in  the  trust  capacity,  and  one  of 
the  beneficiaries  of  the  trust  was  the  appellant;  so  the  delivery 

iBoggs  &  Russell  v.   Martin,    13    suffer  loss  by  the  fault  or  misconduct 

B.  Mon.  (Ky.)  239,  243.  of  a  third  person,  he  who  first  reposes 
-Bigelowv.  Heaton,  4  Denio(N.  Y.),     the  confidence,  or  by  his  negligent 

496.  6  Hill  (N.  Y.),  43.  conduct  makes  it   possible   for  the 

'^  Norfolk,  etc.  Co.  V.  Barnes,  104  N.  loss  to  occur,  must   bear  the  loss.' 

C.  35,  5  L.  R.  A.  611.  The  court  say:  This  doctrine  is  recognized  in  State 
"We  think  this  case  falls  withm  the  v.  Lewis,  73  N.  C.  138:  Vass  v.  Rid- 
principle  declared  in  Wilmington  &  dick,  89  N.  C.  6;  State  v.  Peck,  53  M& 
W.  Ry.  Co.  V.  Kitchin,  91  N.  C.  39,  284;  Hern  v.  Nichols,  1  Salk.  289." 

'  that  where  one  of  two  persons  must 

563 


Oil.  X.]  COMPENSATION    AND    LIEN    OF   CARRIER.  [§  559. 

of  the  possession  of  the  property  to  the  assignee  was  for  the 
benefit  of  all  of  Pool's  creditors,  including  appellant,  according 
to  their  respective  interests."  ^ 

Where  a  cargo  of  lath,  sold  by  the  consignee  to  the  claimant 
before  arrival,  was  discharged  without  notice  to  complainant 
of  any  lien  or  claim  for  freight  and  demurrage,  it  being  cus- 
tomary in  the  port  of  New  York  to  discharge  cargoes  from 
canal-boats  before  demanding  freight  and  demurrage,  and  the 
laths,  as  fast  as  they  were  discharged,  were  received  by  the 
claimant  and  transported  from  the  wharf  to  his  lumber  yard, 
some  half  mile  distant,  the  claim  for  freight  and  demurrage 
against  the  consignee  and  shipper  being  afterwards  disputed 
as  to  the  amount,  it  was  held  that,  as  the  delivery  was  uncon- 
ditional, the  lien  had  been  lost.- 

§  559.  Lien  satisfied. —  The  property  is  held  by  the 

carrier  as  security  for  the  payment  of  his  freight  and  proper 
charges.  It  goes  without  saying,  therefore,  that  if  the  con- 
signee pays  the  freight,  or  in  any  way  satisfies  the  carrier  for 
the  amount  of  his  claim,  the  lien  will  be  satisfied.  So,  if  the 
carrier  extends  the  consignee  credit  for  the  freight  or  takes 
his  note,  or  accepts  other  obligations  which  will  be  inconsist- 
ent with  an  intention  to  hold  the  property  by  virtue  of  his 

1  Caye  v.  Fabel,  Assignee,  etc.,  49  ties  while  the  railroad  company  built 
L.  R.  A.  251.  Where  a  mistake  was  the  tracks  and  furnished  the  iron; 
made  by  the  clerks  of  the  carrier  on  the  spur  tracks  being  operated  ex- 
account  of  misunderstanding  as  to  clusively  by  the  railroad  company, 
the  rate  of  freight  upon  certain  ar-  and  part  of  its  charges  was  for  plac- 
ticles  delivered  for  shipment  by  the  ing  the  coal  upon  spur  tracks;  it 
sliipper  afterwards,  it  was  held  that  being  necessary  to  remove  the  cars 
the  carrier  would  not  be  held  to  the  from  the  spur  tracks  and  move  them 
amountgiven  the  shipper  by  mistake,  along  the  main  track,  thence  along 
but  that  he  would  be  entitled  to  com-  a  branch  track  on  the  consignee's 
pensation  for  the  regular  amount,  premises  to  his  docks  before  the  con- 
and  would  have  a  lien  upon  the  signee  could  handle  the  coal;  this 
goods  for  that  amount.  Rowland  v.  being  done  by  an  engine  and  crew 
New  York,  etc.  R.  Co.,  61  Conn.  103,  of  tlie  railroad  company,  which  the 
23  Atl.  755.  superintendent  furnished  on  request, 

2Eagan   v.    A   Cargo    of    Spruce  it  was  held  that  placing  the  cars  on 

Lath,  43  Fed.  480;  affirmed,  31  Fed.  the  spur  tracks  was  not  a  delivery  of 

830.      Where    carloads    of  coal    on  the  coal  so  as  to  deprive  the  railroad 

reaching     their     destination     were  company  of  its  lien  for  freiglit.  N.  Y. 

placed  on   spur   ti-acks   on  the  con-  Cent.  &  II.  R.  Co.  v.  Davis,  108  N.  Y. 

signee's  premises,  he  furnisliing  the  674,  34  N.  Y.  Sup.  206. 

563 


§   5 Go.]  CAERIEES.  [part   V. 

lien,  the  lien  will  be  held  to  be  void.^  And  where  the  carrier 
had  negligently  delayed  delivery  of  the  goods  so  that  his  lia- 
bility for  damages  therefor  is  equal  to  or  greater  than  the 
amount  of  the  freight,  it  was  held  that  the  consignee  could 
maintain  replevin  without  tender  of  the  freight.^  And  so  the 
carrier  will  at  all  times  be  excused  from  liability  where  the 
damage  is  the  result  of  the  act  of  God,  the  public  enemy,  or 
the  acts  of  the  shipper;  in  fact,  the  limitations  upon  the  liabil- 
ity of  the  carrier  will  be  applied ;  and  if  the  damage  results 
from  any  of  these  causes,  it  will  not  defeat  the  lien  or  even  off- 
set in  an  action  for  the  freight.^ 

§560.  The  lien  discharged. —  The  carrier  holds  the 

goods  to  secure  him  for  the  payment  of  the  freight  and 
charges.  The  lien  is  therefore  only  to  the  extent  of  the  amount 
due  the  carrier.  A  payment  of  this  amount,  as  we  have  seen, 
will  discharge  the  lien.  It  therefore  follows  that  a  tender  of 
the  full  amount  of  the  charges  that  are  due  the  carrier,  and 
for  which  he  holds  the  property,  would  operate  as  a  discharge 
of  the  lien.  The  carrier  has  no  further  or  other  interest  in 
the  goods,  and  whenever  the  consignee  offers  by  tender  to 
pay  this  amount  the  goods  must  be  released.  If  a  tender  is 
made  of  the  amount  that  is  justly  due  to  the  carrier,  and  the 
carrier  should  refuse  to  accept  the  tender  and  release  the 
goods,  the  consignee  could  recover  them  by  an  action  of  re- 
plevin, or  the  amount  of  their  value  in  trover. 

"  It  is  a  general  rule  of  law  that  where  a  person  holds  a  lien 
upon  property,  a  tender  by  the  owner  of  the  property  of  the 
amount  of  the  lien  will  discharge  it.  In  fact,  the  detention  of 
the  goods  upon  a  different  and  inconsistent  ground  will  be  a 
waiver  of  the  lien.  It  is  a  well-settled  rule  in  the  law  of  pledges 
that  if  the  money  for  which  the  goods  are  pawned  be  tendered 
to  the  pawnee,  and  he  refuses  to  receive  it,  he  becomes  thereby 
a  wrong-doer,  and  his  special  property  in  the  chattel  is  deter- 
mined. .  .  .  The  principle  governing  the  subject  is,  that 
tender  is  equivalent  to  payment  as  to  all  things  which  are  in- 
cidental and  accessorial  to  the  debt.  The  creditor,  by  refusing 

iSecord  v.  Buffalo,  etc.  Co..  5  R.  Co..  1  Wash.  53;  Bancroft  v.  Pe- 
Blatch.  525.  ters.  4  Mich.  619. 

2  Moran  Bros.  Co.  v.  Northern  Pac.        3  Gait  v.  Archer,  7  Grat.  (Va.)  307 

Newhall  v.  Varges,  15  Me.  314. 
564 


CH.  X.]  COMPENSATION    AND    LIEN    OF    CAKKIEE.  [§  560. 

to  accept,  does  not  forfeit  his  right  to  the  thing  tendered,  but 
he  does  lose  all  collateral  benefits  or  securities.  The  instanta- 
neous effect  is  to  discharge  any  collateral  lien  as  a  pledge  of 
goods  or  a  right  of  distress.  Upon  these  principles  it  has  been 
held  that  if  the  debtor  tender  the  debt  to  the  pledgee,  and  he 
refuse  to  deliver  up  the  pledge,  he  is  liable,  though  it  be  sub- 
sequently lost,  or  even  forcibly  taken  from  him."  ^ 

1  Tiffany  v.  St.  Johns,  65  K  Y.  314,  (N.  S.)  367;  Coggs  v.  Bernard,  3  Ld. 
318,  23  Ana.  Rep.  612;  Winter  v.Coit,  Raym.  909;  Kortright  v.  Cady,  21 
7  N.  Y.  288;  Weeks  v.  Goode,  6  C.  B.    N.  Y.  366. 

565 


a-- 


r 


CHAPTEE  XI 


TERMINATION  OF  THE  CARRIER'S  LIABILITY,  AND  HEREIN  HIS 
LIABILITY  AS  A  WAREHOUSEMAN  AND  HOW  DISCHARGED. 


Notice  must  be  actual, 

and  for  a  removal  of  goods 
at  a  proper  time  if  time 
fixed. 

Contract  —  Usage  — 

Course  of  dealing, 

Usage  —  Course  of  deal- 
ing. 

Consignee  cannot  prolong  lia- 
bility as  carrier. 

Termination  of  liability. 

Three  distinct  views. 

The  Massachusetts  rule. 

The  New  Hampshire  rule. 

The  rule  demanding  notice  to 
consignee. 

What  will  excuse  delivery. 

Stoppage  in  transitu. 

The  law  favors  the  right. 

Some  requisites  to  the  right 
to  exercise  stoppage  in  tran- 
situ. 

How  exercised  —  Notice  by 
whom  —  To  whom. 

How  can  the  right  be  de- 
feated. 

Lien  of  the  carrier  for  freight 
has  priority. 

Stoppage  in  transitu  —  Duty 
of  carrier  —  Termination  of 
liability. 


§  561 .  Delivery  of  the  goods  to  the  consignee. —  The  object 
of  the  employment  on  the  part  of  the  shipper  is,  that  the  goods 
may  be  safely  carried  and  delivered  to  the  consignee.  The 
carrier  undertakes  to  do  this  and  so  the  duty  of  the  carrier  is 
plain.  He  must  carry  and  deliver  the  goods  to  the  consignee 
or  his  order,  and  to  no  one  else,  at  a  proper  time  and  at  a 

566 


561. 

Delivery  of  the  goods  to  the 
consignee. 

§  576, 

562. 

The  bill  of  lading. 

563. 

Rules  as  to  the  delivery  ap- 

plicable to  all  carriers. 

577. 

564. 

The  requirements  of  the  car- 

rier   upon    arrival    of  the 

578, 

goods  at  destination. 

565. 

Requirements  as  to  delivery. 

579. 

566. 

When  the  express  company 

becomes  warehouseman. 

580. 

567. 

Express  company's  liability  as 

581. 

warehouseman. 

582. 

568. 

Duty    of    express    com- 

583. 

panies  when  goods  refused 

584. 

by  consignee. 

569. 

Goods  sent  C.  0.  D. 

585, 

570. 

Where  consignee  fails  to  re- 

586. 

ceive  the  goods  or  refuses 

587, 

to  receive  them. 

588, 

571. 

Right     to     inspect    the 

goods  sent  C,  0,  D, 

572. 

Carrier  may  assist  in  prevent- 
ing   fraud  on  the  part  of 

589, 

consignor. 

590, 

573. 

Termination  of  liability. 

574. 

Carrier    must   be   reasonably 
diligent  in  giving  notice  to 

591, 

consignee. 

592. 

575. 

Must  provide  suitable    place 
for  landing  and  caring  for 
goods. 

CII.  XI.]        TEIOIINATION    OF    LIABILITY  —  WAKEHOUSEMEN,         [§  5G1. 

proper  place.  The  liability  of  a  common  carrier  as  an  insurer 
continues  until  he  has  so  delivered  the  goods  to  the  consignee  or 
the  person  lawfully  entitled  to  receive, them,  or  until  the  hap- 
pening of  that  which  excuses  such  delivery  and  permits  him  to 
hold  the  goods  as  a  warehouseman  or  deliver  them  to  some 
other  warehouseman.  "  It  is  the  settled  doctrine  of  England  and 
this  country  that  there  must  be  an  actual  delivery  of  the  prop- 
erty to  the  proper  person.'  .  .  .  And  in  no  other  way  can 
the  carrier  discharge  his  responsibility  except  by  proving  that 
he  has  performed  such  engagement,  or  has  been  excused  from 
the  performance  of  it,  or  been  prevented  by  the  act  of  God  or 
the  public  enemy."  ^  And  where  the  action  was  for  failure  of 
an  express  company  to  carry  and  deliver  a  package  of  money, 
the  supreme  court  of  Illinois  in  their  opinion  thus  forcefully 
and  tersely  state  the  obligations  of  the  carrier:  "They  (the  de- 
fendant company)  became  insurers  for  its  safe  delivery ;  being 
so,  nothing  can  excuse  them  from  their  obligation  safely  to 
carry  and  deliver  but  the  act  of  God  or  the  public  enemy. 
This  rule  of  the  common  law,  the  rigid  application  of  which 
has  given  so  much  satisfaction  and  security  to  the  commerce 
of  nations,  is  properly  invoked  in  cases  like  this,"^ 

The  supreme  court  of  Illinois,  adopting  the  language  of 
Hutchinson  on  Carriers,^  in  the  case  of  Pacific  Exjp.  Co.  v. 
Shearer,  above  cited,  say:  "No  circumstances  of  fraud,  imposi- 
tion or  mistake  will  excuse  the  common  carrier  from  responsi- 
bility for  a  delivery  to  the  wrong  person.  The  law  exacts  of 
him  absolute  certainty  that  the  person  to  whom  the  delivery, 
is  made  is  the  party  rightfully  entitled  to  the  goods,  and  puts 
upon  him  the  entire  risk  of  mistakes  in  this  respect,  no  matter 
from   Avhat  cause  occasioned,   however  justifiable  the  deliv- 

1  Southern  Exp.  Co.  v.  Van  Meter,  3Hutcli.onCarriers,sec.344;  North- 
17  Fla,  783,  35  Am.  Rep.  107:  Am.  ern  Pac,  R.  Co,  v.  Commercial  Nat. 
Exp.  Co.  V.  Stack,  29  Ind.  27;  Price  Bank,  123  U.  S.  727;  Indianapolis. 
V,  Oswego,  etc.  Co.,  50  N.  Y.  213,  etc.  R,  Co,  v.  Herndon,  81   111.  143: 

2  U.  S.  Exp,  Co.  V.  Hutchins,  67  111,  Erie  Dispatch  Co,  v.  Johnson,  87 
349;  Baldwin  v.  Am,  Exp,  Co.,  23  111,  Tenn.  490;  Mo,  Pac.  Ry,  Co.  v,  Heid- 
197,  17  Am,  Dec,  190.  In  Pacific  enheimer,  82  Tex.  201;  Howard  v. 
Exp.  Co.  V,  Shearer,  IGO  111.  215,  37  L.  Old  Dominion  Co.,  83  N,  C,  158, 35  Am. 
R.  A.  177,  it  was  held  "that  a  carrier  Rep.  571;  Ela  v.  Am.  etc.  Exp.  Co., 
is  an  insurer  of  the  safe  delivery  of  29  Wis.  Gil,  9  Am,  Rep.  G19. 

the  goods  to  the  person  to  whom 
they  are  consigned." 

567 


§  501.]  CARRIERS.  [part    V. 

ery  may  seem  to  have  been,  or  however  satisfactory  the  cir- 
cumstances or  proof  of  the  identity  may  have  been  to  his  mind; 
and  no  excuse  has  ever  been  allowed  for  a  delivery  to  the  per- 
son for  whom  the  goods  were  not  directed  or  consigned." 

Because  of  this  rigid,  unalterable  rule  as  to  the  delivery  of 
the  property  by  the  carrier,  the  carrier  wuU  be  fully  protected 
in  his  efforts  to  avoid  mistake  or  wrong  delivery  of  the  goods. 
He  has  a  right  to  make  thorough  investigation,  acting  at  all 
times  in  good  faith  as  to  the  identity  of  the  person  claiming 
the  goods.  Where  goods  had  been  delivered  and  carried  to 
their  destination,  and  the  carrier  refused  upon  demand  to  de- 
liver them  to  the  plaintiff,  who  claimed  to  be  the  consignee, 
coupling  the  refusal  with  an  offer  to  deliver  the  goods  if  the 
plaintiff  would  produce  any  papers  showing  ownership  or  au- 
thority to  receive  them,  it  was  held  "  that  it  should  have  been 
submitted  to  the  jury  whether  the  refusal  was  qualified,  and,  if 
so,  whether  the  qualification  was  reasonable  and  was  the  true 
reason  for  not  delivering  the  goods."  The  court  say:  "The 
defendants  were  bailees  of  the  property,  under  an  obligation  to 
deliver  it  to  the  rightful  owner.  They  would  have  been  liable 
had  they  delivered  the  goods  to  a  wrong  person.  Common 
carriers  deliver  property  at  their  peril,  and  must  take  care  that 
it  is  delivered  to  the  right  person,  for  if  the  delivery  be  to  the 
wrong  person,  either  by  an  innocent  mistake  or  through  fraud 
of  third  persons,  as  upon  a  forged  order,  they  will  be  respon- 
sible, and  the  wrongful  delivery  will  be  treated  as  a  conver- 
sion. The  duties  of  carriers  may  be  varied  by  the  differing 
circumstances  of  cases  as  they  arise;  but  it  is  their  duty  in  all 
cases  to  be  diligent  in  their  efforts  to  secure  a  delivery  of  the 
property  to  the  person  entitled,  and  they  will  be  protected  in 
refusing  delivery  until  reasonable  evidence  is  furnished  them 
that  the  party  claiming  is  the  party  entitled,  so  long  as  they 
act  in  good  faith  and  solely  with  a  view  to  a  proper  delivery."  ^ 

As  we  have  seen,  the  refusal  to  deliver  the  goods  must  be 

1  McEntee  v.  New  Jersey   Steam-  dence  is  furnished  that   the   party 

boat  Co.,  45  N.  Y.  34,  6  Am.  Rep.  28.  claiming  the  goods  is  the  person  en- 

In  Baltimore  &  Ohio  R.  Co.  v.  Hum-  titled,  so  long  as  it  acts  in  good  faith 

phrey,  59  Md.  390,  it  was  held  that  and  solely  with  a  view  to  a  proper 

"  the  carrier  will  be  protected  in  re-  delivery." 
fusing  delivery  until  reasonable  evi- 

568 


J 


ClI.  XI.]       TERMINATION    OF    LIABILITY WAREHOrSEMEN.        [§  502. 

in  good  faith  and  upon  reasonable  grounds.  If  the  carrier 
refuses  simply  for  the  reason  that  he  desires  to  deprive  the 
consignee  of  the  possession  of  the  goods,  or  for  personal  rea- 
sons, or  to  gratify  others,  or  voluntarily  undertakes  to  retain 
the  property  in  his  possession,  he  would  be  liable  in  an  action 
as  for  conversion  of  the  property.  And  so  where  a  carrier  re- 
fused to  deliver  consigned  carloads  of  freight  to  the  consignees 
because  they  entered  into  a  combination  to  resist  the  enforce- 
ment of  rules  providing  demurrage  for  the  unreasonable  deten- 
tion of  cars,  it  was  held  that  the  carrier  would  not  be  justified.^ 

§  562.  The  bill  of  lading. —  The  usual  coiirse  of  busi- 
ness in  shipping  goods,  where  a  bill  of  lading  is  delivered  to 
the  shipper,  has  been  stated.  But  by  way  of  illustration  it  is 
perhaps  proper  to  recall  that  subject  in  connection  with  the 
delivery  of  the  goods.  In  cases  where  the  original  bill  of  lad- 
ing has  been  forwarded  to  the  consignee  or  has  been  by  him 
indorsed  and  delivered  to  a  third  person,  or  where  the  bill 
of  lading  has  been  sent  through  the  bank  with  draft  attached, 
upon  which  the  shipper  at  his  home  bank  has  received  advances, 
the  only  security  for  these  advances,  and  the  only  real  safety 
of  the  shipper  or  his  indorsee,  is  in  the  rigid  rule  of  law  that 
demands  without  exception  that  the  carrier  shall  deliver  the 
goods  only  to  the  person  to  whom  they  are  consigned,  and  that 
he  will  follow  explicitly  the  directions  given  him  in  the  bill  of 
lading.  And  so  the  carrier  has  the  right  to  demand,  and  should 
always  demand  before  delivering  the  goods,  the  original  bill  of 
lading  that  was  issued  at  the  time  of  the  shipment,  in  order  that 
he  ma}'^  know  that  all  the  conditions  have  been  fulfilled,  and 
that  the  goods  are  being  delivered  to  the  person  legally  en- 
titled thereto.  The  carrier  always  assumes  the  risk,  when  he 
delivers  the  goods,  that  he  has  delivered  to  the  person  entitled 
to  receive  them,  and  so  should  require  the  bill  of  lading  to  be 
produced. 

"Where  a  car  of  goods  was  shipped,  the  shippers  consigning 
them  to  themselves,  and  at  the  same  time  drawing  for  the 
amount  of  their  value  by  attaching  a  draft  to  a  bill  of  lading 
upon  a  third  party,  the  carrier  delivering  the  goods  without 
requiring  the  production  of  the  bill,  it  was  held  that  the  car- 

1  Kentucky  Wagon  Mfg.  Co.  v.  Railroad  Co.  et  al.,  98  Ky.  152,  36  L.  E.  A.  850. 

5G9 


§  562.]  CAKPJERS.  [part  v» 

rier  was  liable  for  the  amount  of  the  draft.  The  court  saj:* 
'•The  agent  delivered  the  car  without  the  bill  of  lading  and 
without  an  acceptance  of  the  draft.  This  he  had  no  right  to 
do.  The  title  to  the  property  remained  in  the  consignors  until 
delivered  in  acc^-ordance  with  the  conditions.  Bills  of  lading 
are  symbols  of  property,  and  when  properly  indorsed  operate 
as  a  delivery  of  the  property  itself,  investing  the  indorsers  with 
a  constructive  custody  which  serves  all  the  purposes  of  an  act- 
ual possession,  and  so  continues  until  there  is  a  valid  and  com- 
plete delivery  of  the  property  under  and  in  pursuance  of  the 
bill  of  lading  and  to  the  person  entitled  to  receive  the  same. 
There  could  be  no  delivery  except  in  accordance  with  the  bill 
of  lading."  ^  Ordinarily  the  owner  of  the  goods  may  direct 
their  delivery,  when  there  is  no  bill  of  lading  assigned  or  in- 
dorsed,  to  a  lonajide  holder;  that  is,  to  a  person  who  has  in 
good  faith  advanced  money  upon  the  bill  by  pa3niient  of  a 
draft,  or  who  has  accepted  a  draft  attached  to  the  bill  of  lad- 
ing. Where  the  draft  has  been  paid,  or  accepted  under  such 
circumstances,  the  goods,  to  the  extent  of  the  amount  of  the 
draft,  together  with  the  right  of  possession,  have  passed  to  the 
acceptor  or  payor  of  the  draft,  and  the  carrier  cannot  relieve 
himself  of  liability  until  he  delivers  the  goods  to  such  consignee 
or  indorsee  of  the  bill,  for  in  such  case  the  shipper  and  former 
owner  have  constructively  delivered  the  property  to  such  an 
indorsee. 

Where  a  bill  of  lading,  by  the  terras  of  which  the  goods  are 
consigned  to  the  order  of  the  consignor,  is  indorsed  in  blank 
and  negotiated  for  value  as  security  for  a  draft  drawn  by  the 
consignor  on  a  third  person,  the  court  held  that  the  carrier  has 
no  right  to  deliver  the  goods  to  such  third  person  without  pro- 
duction of  the  bill  of  lading  or  authority  from  the  holder 
thereof,  and  the  rights  of  the  holder  of  such  draft  and  bill  of 
ladinir  in  oood  faith  and  for  value  against  the  carrier  are  not 
affected  by  subsequent  fraud  of  the  consignor  of  which  said 
holder  had  no  notice.     And  where  a  consignor  of  grain  drew 

1  Pacific  Ry.  Co.  V.  stern  &  Spiegle,  Heiskell  v.  Bank,  89  Pa.  St.  155; 
119  Pa.  St.  24.  Dows  v.  Bank,  91  U.  S.  618;  Stollen-^ 

2  Boatmen's  Savings  Bank  v.  West,  werck  v.   Thatcher,  115  Mass.  224j 
etc.  R.  Co.,  81  Ga.  221 ;  Furman  v.  Ben j.  on  Sales,  §  332. 
Union  Pac.  Ry.  Co.,  106  N.  Y.  579; 

570 


CII.  XI.]      TERMINATION   OF  LIABILITY WAREHOUSEMEN.      [§§563-4. 

on  the  consignee  with  the  bill  of  lading  attached,  and  the  con- 
signee paid  the  draft  with  money  obtained  from  bankers  on 
the  security  of  a  transfer  of  the  bill  of  lading  to  them,  the 
consignee  becoming  insolvent,  the  carrier,  without  demanding 
the  bill  of  lading,  delivering  the  grain  to  the  consignor,  it  w^as 
held  that  the  carrier  was  liable  to  the  bankers  for  the  value  of 
the  grain,  notwithstanding  the  consignee  was  largely  indebted 
to  the  consignor.^  But  where  bills  of  lading  for  grain  were 
duly  indorsed  and  pledged  to  a  bank  as  collateral  for  a  note, 
and  the  bank  was  in  the  habit  of  permitting  the  pledgor  to 
withdraw  bills  and  substitute  others  for  the  purpose  of  allow- 
ing the  pledgor  to  obtain  the  freight,  and  the  pledgor  withdrew 
certain  bills,  presented  them  to  the  railroad  company,  obtained 
the  freight,  and  returned  them  to  the  bank,  it  was  held  that 
the  carrier  was  not  liable  therefor  to  the  bank.^ 

§  563.  Rules  as  to  the  delivery  applicable  to  all  carriers. 
The  rule  requiring  delivery  of  the  goods  to  the  proper  con- 
signee is  applicable  to  all  common  carriers  without  exception, 
whether  they  be  carriers  by  w^ater  or  by  land ;  wiiether  it  be 
heavy  freight  or  express  packages.  "All  classes  of  common 
carriers  are  responsible,  and  equally  responsible,  for  a  loss  of 
the  goods  by  delivery  of  them  to  the  wrong  person."' 

§  564:.  The  requirements  of  the  carrier  upon  arrival  of 
the  goods  at  destination. —  The  requirements  of  the  carrier 
upon  the  arrival  of  the  goods  at  their  destination,  and  the  man- 
ner of  terminating  their  liability,  varies  somewhat,  depending 
upon  the  kind  of  carrier  that  has  the  goods  for  carriage;  that 
is  to  say,  custom  and  the  general  course  of  business  has  fixed 
upon  the  express  company  the  requirement  of  making  a  per- 
sonal delivery  in  cities  and  towns  of  enough  importance  to 
warrant  sufficient  business  so  that  the  company  can  reason- 
ably afford  messengers  to  do  this  work ;  and  in  such  case  the 
company,  by  its  agents,  are  expected  to  find  the  consignee  and 
deliver  the  goods,  and  not  wait  for  him  to  call  for  the  package 
after  having  been  notified.     But  in  places  where  the  express 

1  Wells  V.  Oregon,  etc.  R.  Co.,  32  700,  1  Am.  Rep.  365,  citing  Steven- 
Fed.  51.  son  V.  Hart  et  al.,  4  Bing.  476,  13  E. 

2Douglassv.  People's  Bank,  32  Am.  C.  L.  596;  Duflf  v.  Budd,  3  Brod.  & 
&  Eng.  Cases,  510.  Bing.  177,  7  E.  C.  L.  671;  Fletcher  v. 

3  Winslow  V.  Railway  Co.,  42  Vt.     American  Exp.  Co.,  15  Am.  L.  Reg.  21, 

571 


§  565.]  CAKKIEKS.  [part    Y. 

companies  have  no  messengers  to  make  personal  delivery  of 
packages,  they  are  required  to  notify  the  consignee  of  the  ar- 
rival of  the  package,  and  after  the  consignee  has  had  reason- 
able time  to  call  and  receive  the  same,  the  carrier  will  be- 
come liable  as  a  warehouseman — the  extraordinary  liability 
ceasing.  But  in  case  of  railroad  companies  and  carriers  by 
water,  the  requirement  is  very  different.  The  express  compa- 
nies generally  carry  small  packages  of  freight;  the}''  employ 
agents  who  drive  their  wagons,  carry  their  goods  to  every  part 
of  the  city  and  deliver  them  to  the  several  consignees.  But 
the  railroad  or  steamship  is  confined  to  the  particular  limits 
that  the  water-course  or  track  has  made  for  them.  And  then, 
too,  they  generally  carry  heavier  freight,  and  it  would  not  be 
practicable,  nor  has  it  ever  been  required,  that  they  should 
make  personal  delivery  to  the  consignee,  except  at  their  wharves 
or  freight  depots. 

As  to  just  what  is  required  of  them  the  authorities  are  not 
all  in  accord.  Some  of  the  courts  hold  that  the  railroad  or 
steamboat  companies  are  not  bound  even  to  send  notice  to  the 
consignee  of  the  arrival  of  the  freight,  but  that  they  may  un- 
load it  into  their  warehouses,  or,  if  in  car  lots,  place  the  cars 
where  they  may  be  conveniently  unloaded,  and  if  not  called 
for  within  a  reasonable  time  their  liability  as  carriers  ceases, 
and  they  become  liable  only  as  warehousemen;  while  others 
courts  hold  that  it  is  the  duty  of  the  carrier  to  give  the  con- 
signee notice  (sending  notice  through  the  mail  is  generally 
sufficient),  and  after  waiting  a  reasonable  time  for  the  con- 
signee to  receive  the  goods  the  extraordinary  liability  of  the 
common  carrier  ceases,  and  he  becomes  liable  as  a  warehouse- 
man.    The  several  holdings  will  be  discussed  later. 

Express  Companies. 

565.  Requirements  as  to  delivery. —  Express  companies 
are  required  to  make  personal  delivery  of  the  goods  intrusted 
to  them  for  carriage  except  in  cases  noted ;  and  until  delivered 
to  the  consignee,  unless  a  reasonable  excuse  for  non-delivery 
exists,  the  company's  liability  as  a  common  carrier  continues. 
What  effort  the  agent  of  the  company  should  make  to  deliver 
the  goods  before  their  liability  as  a  common  carrier  will  be  ter- 
minated and  their  liability  as  warehouseman  commence  is  a 

572 


CH. 


.XL] 


TEKMINATION    OF    LIABILITY 


WAREHOUSEMEN. 


L§  ^<j5- 


question  that  has  been  very  much  discussed.  If  the  goods  are 
addressed  to  the  consignee  and  the  street  number  given,  it  is 
the  duty  of  the  carrier  to  look  for  him  there,  and  if  found  de- 
liver to  him  the  goods;  but  if  he  is  not  found,  or  if  no  street 
number  is  given  nor  sufficient  address,  in  such  case  it  is  the 
duty  of  the  carrier  to  make  reasonably  diligent  efforts  to  find 
the  consignee  and  deliver  to  him  the  goods.  No  fixed  legal 
definition  can  be  laid  down  as  to  what  is  reasonably  diligent 
effort;  it  would  vary  in  each  case,  and  would  be  governed  by 
circumstances.  It  can  only  be  said  that  it  must  be  such  an 
effort  as  a  reasonably  prudent  man  would  make  under  just  such 
circumstances  in  an  important  business  affair  of  his  own.  It 
therefore  follows  that  it  is  a  question  for  the  jury.^ 


iln  Witbeck  v.  Holland,  45  N.  Y. 
13,  where  the  company  was  held  not 
to  have  exei'cised  reasonable  dili- 
gence in  finding  the  consignee,  the 
facts  proven  were  that  the  agent  of 
the  company  looked  in  the  directory 
of  the  city  and  did  not  find  the  name; 
the  next  day  addressed  a  notice  to 
Martin  Whitbeck  instead  of  Wit- 
beck.  Two  or  three  days  after  he 
inquired  of  two  men,  and  afterwards 
of  the  city  treasurer,  if  thay  knew 
Martin  Whitbeck  (not  Witbeck).  No 
further  efforts  were  made;  the  pack- 
age was  deposited  in  the  company's 
safe  and  afterwards  taken  by  burg- 
lars. The  court  sa}':  "It  appeared 
in  the  present  case  that  the  defend- 
ant had  its  vehicles  by  which  they 
carried  articles  to  the  consignees  in 
the  cit3'  of  Schenectady,  which  had 
arrived  there  by  rail  under  contracts 
with  the  company  for  the  transpor- 
tation. This  is  the  usual  course  of 
transacting  business  by  such  com- 
panies; were  it  otherwise,  the  busi- 
ness done  by  these  companies  would 
be  greatly  diminished,  as  it  would 
be  equally  advantageous  in  many 
cases  to  have  the  property  trans- 
ported by  the  railroad  company. 
When  the  defendant  received  the 
package  from  the  Adams  Company 


at  New  York,  consigned  to  Martin 
Witbeck.  Schenectady,  it  became  lia- 
ble as  carrier  for  its  carriage  to 
Schenectady  and  its  delivery  to  Wit- 
beck thefe,  if  with  reasonable  dili- 
gence he  could  be  found.  The  per- 
formance of  this  entire  service  was 
contracted  for  by  its  receipt  so  ad- 
dressed, and  had  the  defendant  re- 
ceived it  from  the  plaintiff  at  New 
York  and  given  him  a  receipt  for  its 
transportation,  the  obligation  to 
make  personal  delivery  at  Schenec- 
tady would  have  been  incurred.  .  .  . 
The  diligence  which  the  law  required 
of  the  defendant  was  such  as  a  pru- 
dent man  would  have  used  in  an  im- 
portant business  affair  of  his  own. 
The  evidence  shows  that  the  defend- 
ant was  so  inattentive  as  to  mistake 
the  surname  of  the  consignee.  Al- 
though the  package  was  addi-essed 
to  Witbeck,  all  its  inquiries  were 
made  for  Whitbeck.  This  may  have 
prevented  their  finding  him.  It 
further  appeared  that  its  inquiries 
were  confined  to  a  few  persons  in 
the  vicinity  of  its  place  of  business, 
and  that  by  these  it  obtained  infor- 
mation of  other  persons  of  a  like  sur- 
name, one  of  whom  was  the  father 
of  the  consignee.  Surely  inquiry 
should  have  been  made  of  these  per- 


573 


§§  566,  567.]  CAEKIEKS.  [PAKT    V. 

§  566.  When  the  express  company  becomes  warehouse- 
man.—  When  the  liability  of  a  common  carrier  ceases  in  the 
case  of  an  express  company,  and  that  of  a  mere  warehouseman 
takes  its  place,  depends  entirely  upon  the  efforts  used  to  make 
a  personal  deli\^ery  of  the  goods,  or  upon  a  refusal  of  the  con- 
signee to  receive  them  when  tendered  by  the  company.  The 
prime  and  paramount  duty  of  the  express  company  is  to  place 
the  property  intrusted  to  it  in  the  hands  of  the  consignee,  but 
no  impossible  or  unreasonable  requirements  will  be  laid  upon  the 
company;  and  so  when  the  agents  of  the  company  have  an- 
swered all  reasonable  requirements  as  to  delivering  the  prop- 
erty and  have  failed,  and  the  goods  are  still  in  their  possession, 
their  extraordinary  liability  as  insurers  will  cease;  they  will 
be  permitted  to  store  the  goods,  and  their  liability  will  be  that 
of  a  warehouseman  required  to  exercise  ordinary  diligence. 

§  567.  Express  company's  liability  as  warehouseman. —  In 
this  connection  it  may  be  said  that  there  are  at  least  two  occa- 
sions when  an  express  company's  liability  is  that  of  a  ware- 
houseman: (1)  When  the  goods  are  delivered  to  it,  but  not  for 
immediate  shipment;  something  remains  to  be  done  before  they 
are  sent  forward;  and  (2)  when  at  their  destination  they  can- 
not for  good  and  sufficient  reasons  be  delivered  to  the  con- 
signee, or  to  any  person  autliorized  to  receive  them.* 

sons,  and  had  it  been  so  made,  deliv-  delayed  for  further  orders  as  to  their 
ery  would  have  been  made  and  the  destination,  or'  for  the  convenience 
loss  would  never  have  occurred.''  of  the  owner,  then,  during  the  time 
1  Barron  et  al.  v.  Eldridge  et  al.,  100  of  such  delay,  the  liability  is  that  of 
Mass.  455.  The  court  say:  "There-  warehouseman.  The  more  stringent 
sponsibility  of  a  common  carrier  for  liability  of  a  common  carrier  only 
goods  intrusted  to  him  commences  attaches  when  the  duty  of  immediate 
when  there  has  been  a  complete  de-  transportation  arises.  It  then  shifts 
liverv  for  the  purpose  of  immediate  from  that  of  warehouseman,  al- 
transportation.  If,  without  putting  though  the  goods  remain  unmoved 
them  in  transit,  the  carrier,  for  his  in  the  storehouse.  Whether  the  re- 
own  temporary  convenience,  places  sponsibility  be  in  one  capacity  or  the 
them  in  store,  still  the  liability  of  a  other  is  seldom  a  matter  of  express 
carrier  attaches.  The  delivery  must  agreement  between  the  parties.  It 
befor  immediate  transportation,  and,  arises  out  of  the  relation  which  the 
of  course,  it  cannot  be  complete  if  parties  sustain,  and  the  duties  which 
anything  remains  to  be  done  by  the  the  law  imposes."  Southern  Ex.  Co, 
shipper  before  the  goods  can  be  sent  v,  McVeigh,  20  Grat.  (Va.)  264.  After 
on  their  way.  If  by  the  usage  and  unsuccessful  effort  to  deliver  the 
coarse  of  business,  and  especially  if  goods.  Hasse  v.  Express  Co.,  94  Mich, 
by  express  request,  the  shipment  is  133.     In  Mai'shall  et  al.  v.  Am.  Exp. 

574 


CII.  XI.]        TERMINATION    OF    LIABILITY WAREHOUSEMEN.        [§568. 

§  568.  Duty  of  express  companies  when  goods  re- 
fused by  consignee.— 'While  there  can  be  no  doubt  that  after 
the  goods  have  been  properly  tendered  to  the  consignee  and  he 
has  refused  to  receive  them,  the  status  of  the  express  com- 
pany is  that  of  a  warehouseman,  the  question  as  to  what  fur- 
ther duty  devolves  upon  the  company  respecting  the  goods  and 
the  parties  is  one  of  importance.  The  goods  are  in  the  custody 
of  the  express  company;  it  has  received  them  for  carriage  and 
delivery  to  the  consignee.  Sound  judgment  and  discretion 
would  dictate,  and  it  is  certainly  the  law,  that  the  company 
would  be  under  obligations  to  at  once  notify  the  consignor  of 
the  refusal  of  the  consignee  to  accept  the  goods.  Good  faith 
and  fair  dealing,  as  well  as  reasonable  diligence,  would  demand 
this.  Ordinarily  the  presumption  is  that  the  consignee  is  the 
owner  of  the  goods;  that  therefore  he  has  the  right  to  control 
them;  but  in  this  case,  where  he  refuses  to  receive  them,  this 
presumption  no  longer  obtains;  on  the  contrary,  in  such  case 
the  carrier  would  be  bound  to  presume  that  the  consignor  is 
the  owner  of  the  property,  and  therefore  the  carrier  must  look 
to  him  for  further  directions  as  to  what  shall  be  done  with  it; 

Co.,  7  Wis.  1,  where  it  appeared  that  their  want  of  notice.  We  do  not 
the  express  company  tendered  a  wish  to  be  understood  as  deciding, 
package  received  for  a  bank  to  a  or  intending  to  intimate,  that  it  is 
person  in  tlie  bank  authorized  to  re-  the  duty  of  the  bank  to  keep  its 
ceive  it,  but  after  banking  hours,  vaults  and  doors  open,  and  persons  in 
-and  placed  his  refusal  upon  the  attendance,  for  the  reception  of  such 
ground  that  their  vault  was  locked  packages,  after  the  business  of  the 
and  the  keys  were  taken  away  by  day  is  entirely  closed.  That  question 
the  cashier,  that  the  agent  of  the  ex-  is  not  before  us.  In  this  case  the  ex- 
press company  placed  said  package  press  messenger  gained  access  to  the 
in  the  iron  safe  of  the  company  and  counter  of  the  bank,  and  a  properly 
securely  locked  it,  and  that  it  was  authorized  agent  was  present  to  re- 
•afterwards  burglarized  and  the  pack-  ceive  the  packages.  If  these  views 
age  lost,  it  was  held  that  the  express  are  correct,  it  follows  as  a  necessary 
company  was  not  liable  as  common  consequence  that  the  defendants' 
carriers.  The  court  say:  "If  he  was  duties  as  common  carriers  were  dis- 
the  person  so  authorized  by  the  con-  charged,  and  their  liabilities,  as  such, 
signee,  it  was  wholly  immaterial  at  an  end,  and,  whatever  may  have 
whether  the  plaintiffs  had  notice  of  been  their  character,  as  bailees,  after- 
it  or  not.  It  was  of  no  consequence  wards,  we  think  they  were  certainly 
to  them  who  such  person  was,  liable  for  gross  negligence  only,  and 
whether  the  cashier,  the  teller  or  tlie  if  so,  that  matter  was  properly  sub- 
jtorter.  And  most  certainly  the  de-  mitted  to  the  jury." 
fendants  are  not  to  be  affected  by 

575 


g   ^>{jj.]  CAKEIEKS.  [part   V. 

but  if  the  consignee  is  the  owner,  and  the  carrier  has  knowl- 
edge of  that  fact,  then  he  may  store  the  goods  and  notify  the 
consignee  of  that  fact,  and  further,  that  they  are  stored  sub- 
ject to  his  order,  giving  him  notice  of  the  place  where  they  can 
be  found.^ 

§  569.  Goods  sent  C.  0.  D. —  If  the  goods  are  sent 

C.  O.  D.,  that  is,  "  collect  on  delivery,"  the  express  company 
can  only  terminate  its  liability  by  the  delivery  of  the  goods  to 
the  consignee,  or  making  the  necessary  effort  to  do  so,  and  col- 
lecting the  amount  claimed  by  the  accompanying  instructions 
and  returning  the  same  to  the  consio^nor.  In  such  case  it  is 
the  duty  of  the  company,  on  receipt  of  the  goods,  to  at  once 
notify  the  consignee,  and  offer  to  deliver  to  him  the  goods  on 
payment  of  the  amount  named  in  the  instructions.  If  the  com- 
pany should  deliver  the  goods  without  receiving  the  amount  of 
the  collection,  it  w^ould  be  liable  to  the  consignor  in  that  sum.- 
But  where,  by  the  terms  of  the  bill  of  lading,  the  goods  were 
not  to  be  delivered  until  the  bill  should  be  produced  and  the 
price  of  the  goods  paid,  yet  where  the  consignor,  after  notice 
that  the  goods  had  been  delivered  without  the  production  of 
the  bill,  and  that  payment  had  not  been  made,  drew  a  draft 
upon  the  consignee,  took  an  acceptance  thereof  and  undertook 
its  collection  through  a  bank,  it  was  held  that  the  consignor 
thereby  abandoned  the  original  purpose  of  requiring  payment 
on  delivery,  and  whether  the  draft  is  collected  is  immaterial.' 
This  course  of  business  is  sometimes  adopted  in  the  sending  of 
freight  b}'  railroad  companies;  instructions  being  w^ritten  in 
the  contract  of  shipment  to  deliver  the  freight  upon  payment 
of  a  certain  amount  of  mone^'".  The  same  course  of  business 
and  the  same  rules  of  law  are  applicable  in  such  cases  as  in  the 
case  of  express  companies,  with  the  exception  that  the  railroad 
company  need  not  deliver  the  freight  personally  to  the  con- 
signee, but  may  simply  give  him  notice  and  collect  the  amount 
when  the  freight  is  delivered  at  its  office.  The  same  liability, 
however,  would  be  incurred  by  the  railroad  company  as  is  in- 
curred by  the  express  company  in  such  like  cases. 

1  American,  etc.  Exp.  Co.  v.  Wolf,     20  Am.  Reg.  227;  United  States  Exp. 
79  III.  430;  Hutchinson  on  Car.,  sees.     Co.  v.  Keefer,  59  Ind.  266. 
383,  884.  3  Southern  Ry.  Co.  v.  Kinchen,  103 

2 Murray  v.  Warner,  55  N.  H.  546,     Ga.  186;  Rathbun  v.  Steamboat  Co., 

76  N.  Y.  376. 
576 


CH.  XI.]      TERMINATION  OF  LIABILITY WAREHOUSEMEN.      [§§  570-1. 

§  570.  Where  consignee  fails  to  receive  the  goods  or  re- 
fuses to  receive  them. —  It  is  generally  understood  that  con- 
signors of  C.  O.  D.  goods  expect  the  express  companies  to  hold 
the  goods  for  a  reasonable  time  if  necessary,  and  to  make  a 
reasonable  effort  to  collect  the  amount  due  and  deliver  the 
goods,  even  after  the  consignee  has  failed  to  take  the  goods 
when  first  offered.  Under  such  circumstances  there  is  nothing 
to  be  done  by  the  company  but  to  store  the  goods  in  their 
warehouse  and  for  a  time  await  the  action  of  the  consignee. 
In  such  case  the  law  will  not  hold  the  company  to  the  extraor- 
dinary liability  of  a  common  carrier,  but  merely  as  a  ware- 
houseman, and  such  would  be  its  liability  if  the  consignee  re- 
fused the  goods;  but  in  any  case  the  carrier  should  notify  the 
consignor  and  hold  the  goods  for  further  instructions.^ 

§  571.  Right  to  inspect  the  goods  sent  C.  0.  D. —  The 

consignee  has  the  right,  regardless  of  the  instructions  of  the 
consignor,  to  inspect  the  goods  before  accepting  and  paying 
for  them.  For  at  most  it  is  but  the  carrying  on  of  a  sale  of 
the  property;  the  carrier  company  acting  for  the  vendor,  or 
consignor,  as  his  agent.  The  consignee  has  the  same  privilege 
to  inspect  the  goods  that  he  would  have  if  purchasing  them 
from  a  merchant  or  his  clerk.  It  has  been  held,  however,  that 
the  company  must  follow  the  instructions  of  the  consignor,  and 
when  an  inspection  was  allowed  contrary  to  instructions,  and 
the  consignee  without  cause  refused  to  take  the  goods  and 
pay  the  amount,  the  carrier  would  be  liable  to  the  consignor 
for  damages.  And  where  a  package  of  goods  was  forwarded 
by  a  carrier  to  be  paid  for  on  delivery,  it  was  held  that  the 
consignee  was  entitled  to  a  reasonable  opportunity  to  inspect 
them  before  he  accepted  them,  and  that  the  carrier  could 
afford  him  reasonable  facilities  for  doing  so  without  making 
himself  chargeable  for  the  price,  even  if  he  put.  them  into  the 
hands  of  the  consignee  for  that  purpose  and  received  from  him 
the  price  as  personal  security  to  the  carrier  that  the  goods 
should  be  returned  if  not  accepted  after  a  reasonable  oppor- 
tunity to  examine  them.^ 

iHasse  v.  Express  Co.,  94  Mich.  133;    press  Co.  v.  Darnell,  31  Ind.  20;  Mar- 
Weed  V.  Barney,  45  N.  Y.  344;  Zinn     shall  v.  Express  Co.,  7  Wis.  1. 
V.  Steamboat  Co.,  49  N.  Y.  443;  Ex-        2  Lyon  &  Co.  v.  Hill  &  Co.,  4G  N.  H. 

49. 
37  577 


§§  572,  573,]  OAEKIEKS.  [PAKT   V. 

§  572.  Carrier  may  assist  in  preyentiiig  fraud  on  tbe  part 
of  consignor. —  This  manner  of  collection  for  goods  sent  by 
express,  or  otherwise,  cannot  be  used  to  perpetrate  fraud  upon 
a  consignee ;  and  so  it  has  been  held  that  the  carrier  will  be 
allowed  to  render  assistance  to  prevent  its  perpetration;  and 
when  it  clearly  appears  on  examination  of  the  goods  that  the 
consignor  is  undertaking  to  commit  a  fraud  upon  the  consignee, 
the  carrier  may  at  any  time  before  the  money  has  been  re- 
mitted return  the  amount  paid  to  the  consignee,  and  the  goods 
to  the  consignor;  indeed,  it  has  been  held  that  this  is  the  duty 
of  the  carrier.  "  An  express  company  may  receive  a  parcel  to 
be  delivered  to  the  consignee  only  on  payment  of  the  sum  di- 
rected to  be  collected  upon  it.  And  if  the  consignor  forbids 
the  consignee  to  inspect  the  contents  of  the  parcel  until  such 
payment  is  made,  it  is  the  duty  of  the  company  to  obey  the 
direction.  But  if  the  company  should,  in  violation  of  the  pro- 
hibition, permit  an  examination  of  the  contents  of  the  parcel, 
and  the  consignee  should  refuse,  without  cause,  to  receive  it 
and  pay  the  sum  required,  it  may  be  the  company  would  be 
liable  to  the  consignor  for  damages.  It  is  unnecessary  to  con- 
sider that  question  in  this  case.  But  if  an  inspection  is  per- 
mitted and  the  contents  are  found  to  be  valueless,  it  may  be 
safely  declared  that  the  company  would  not  be  liable  in  dam- 
ages to  the  party  who  was  guilty  of  the  attempt  to  defraud 
the  consignee.  It  is  also  true  that  if  the  consignee  should  pay 
the  charges,  and  then,  on  opening  the  parcel,  should  find  the 
contents  to  be  of  no  value,  he  would  be  entitled  to  recall  the 
money  paid  at  any  time  before  it  was  paid  over  to  the  con- 
signor. The  agent  would  be  liable  to  refund,  if  the  money  re- 
mained in  his  hands  at  the  time  it  was  demanded  by  the  con- 
signee. The  illegality  of  the  transaction  would  be  a  perfect 
defense  to  the  company  against  the  consignors.  .  .  .  There 
could  be  no  recovery  by  the  consignors  against  the  express 
company  or  the  plaintiff.  This  fraud  intended  and  attempted 
was  a  perfect  answer  to  the  action."  Such  is  the  language  of 
the  court  in  Herrick  v.  Gallagher} 

Carriers  by  "Water. 
§  573.  Termination  of  liability. —  In  an  early  case  in  Mas- 
sachusetts (1826),  Chickering  v.  Fowler,^  it  was  held  that  "  a 


J  60  Barb.  (N.  Y.)  566.  575.  2  4  Pick.  (Mass.)  371. 

578 


i 


CH.  XI.]        TERMINATION    OF    LIABILITY WAREHOUSEMEN.        [§  574. 

promise  by  a  master  of  a  vessel  to  deliver  goods  to  a  consignee 
does  not  require  that  he  should  deliver  them  to  the  consignee 
personally,  or  at  any  particular  wharf.  It  is  sufficient  if  he 
leaves  them  at  some  usual  place  of  unloading,  giving  notice  to 
the  consignee  that  they  are  so  left.  If,  after  such  notice,  the 
consignee  refuses  to  receive  the  goods,  it  is  the  duty  of  the 
master  to  take  care  of  them  for  the  owner,  unless  the  consignee 
is  under  an  obligation  to  receive  them,  in  which  case  they  will 
be  at  his  risk." 

Carriers  by  water  are  under  no  obligation  to  make  personal 
delivery  of  the  goods,  and  so  it  would  seem  that  their  liability 
as  common  carriers  can  be  terminated  not  only  by  delivering 
the  goods  to  the  consignee,  or  the  person  entitled,  to  them,  but 
by  giving  to  such  person  a  reasonable  notice  of  their  arrival 
and  his  readiness  to  deliver  them;  and  after  failure  on  the  part 
of  the  consignee  to  collect  and  receive  them  and  pay  the 
charges;  or  on  his  refusal  to  accept;  or,  if  the  person  who  is 
entitled  to  receive  the  goods  cannot  be  found  l)y  the  carrier 
after  a  reasonably  diligent  effort  has  been  made  to  find  him, 
the  carrier's  extraordinary  liability  as  an  insurer  would  ter- 
minate and  he  would  be  held  to  the  liability  of  a  warehouse- 
man, liable  only  for  ordinary  negligence  and  required  to  exer- 
cise ordinary  diligence.  If  the  consignee  refuses  to  accept  the 
goods,  or  cannot  be  found,  the  carrier  should  notify  the  con- 
signor, for  in  such  case  it  would  be  presumed  that  the  consignor 
is  the  owner  of  the  goods. 

§  574.  Carrier  must  be  reasonably  diligent  in  giving  no- 
tice to  consignee. —  Carriers  of  whatever  kind  or  nature  are 
required  to  be  diligent  in  the  matter  of  giving  notice  to  the 
consignee  of  the  arrival  of  the  goods  at  their  destination,  and 
their  readiness  to  deliver  the  same,  and  if  negligent  in  this, 
and  the  goods  are  lost  or  damaged,  the  carrier  would  be  liable. 
Especially  must  the  carrier  be  diligent  and  prompt  where  the 
property  shipped  and  received  is  perishable.  And  so  where 
goods  were  shipped  in  Pennsylvania  to  the  city  of  Chicago,  di- 
rected to  the  consignee,  whose  name  was  placed  upon  the  box, 
and  also  the  number  of  his  place  of  business,  and  on  their  ar- 
rival by  water  a  letter  was  mailed  to  him  without  giving  his 
number,  and  in  consequence  thereof  was  returned,  and  the 
goods  were  destroyed  by  fire,  it  was  held  "  that  the  carrier  was 

579 


§  575.] 


CARRIERS. 


[part  V. 


liable  to  the  owner  for  a  failure  to  direct  the  notice  to  the  con- 
signee at  his  business  house."  ^ 

§  575.  Must  provide  suitable  place  for  lauding  and  car- 
ing for  goods. —  It  is  said  that  "  by  the  general  usage  of  com- 


1  In  Zinn  et  al.  v.  New  Jersey 
Steamboat  Co.,  49  N.  Y.  442,  the  court 
say:  "  Common  carriers  assume  not 
only  the  safe  carriage  and  delivery 
of  property  to  the  consignee,  but  also 
that  merchandise  and  other  prop- 
erty received  by  them  for  transpor- 
tation shall  be  carried  to  the  place 
of  destination  and  delivered  with 
reasonable  dispatch;  and  for  any 
unreasonable  delay,  either  in  the 
transportation  or  its  deliveiy  after 
its  arrival  at  the  terminus  of  the 
route,  they  are  responsible.  Hand 
V.  Baynes,  4  Whart.  (Pa.)  204:  Raph- 
ael V.  Pickford,  6  Scott  Ch.  N.  R.  478; 
Blackstock  v.  N.  Y.  &  E.  R.  Co.,  20 
N.  Y.  48;  Black  v.  Baxendale,  1 
Exch.  410.  The  liability  of  the  car- 
rier to  answer  for  the  non-delivery 
of  goods,  or  the  want  of  reasonable 
expedition  in  their  delivery,  after 
arrival  at  the  place  of  their  destina- 
tion, was  not  controverted  upon  the 
trial.  The  defendant  in  this  action 
was  not  bound  to  deliver  the  mer- 
chandise to  the  consignees  at  their 
place  of  business.  A  delivery  or 
offer  to  deliver  at  the  wharf  would 
have  discharged  the  carrier  from  all 
responsibility  as  such  carrier.  Car- 
riers by  water  or  railroad  are  not 
held  to  a  delivery  of  goods  to  the 
consignees  at  any  place  other  than 
at  the  wharf  of  the  vessel  or  the 
raih-oad  station,  and  a  notice  to  the 
consignee  of  the  arrival  of  the  goods, 
and  of  a  readiness  to  deliver,  comes 
in  place  of  a  personal  delivery,  so 
far  as  to  release  the  carrier  from  the 
extraordinary  and  stringent  liability 
incident  to  that  class  of  bailees. 
Gibson  v.  Culver,  19  W.  R.  305; 
Fisk  V.  Newton,  1  Den.  45;  Fenner  v. 
Buff.  &  St.  L.  R  Co.,  44  N.  Y.  505. 


If  the  consignee  is  present,  the  goods 
may  be  tendered  or  delivered  to  him 
personally,  and  he  is  bound  to  re- 
move them  within  a  reasonable  time. 
If  he  is  not  present,  he  is  entitled  ta 
reasonable  notice  from  the  carrier 
of  their  arrival,  and  a  fair  oppor- 
tunity to  take  care  of  and  remove 
them.  If  the  consignee  is  unknown 
to  the  carrier,  the  latter  must  us& 
proper  and  reasonable  diligence  to 
find  him;  and  if,  after  the  exercise 
of  such  diligence,  the  consignee  can- 
not be  found,  the  goods  may  be 
stored  in  a  proper  place,  and  the  car- 
rier will  have  performed  his  whole 
duty,  and  will  be  discharged  from 
liability  as  a  carrier.  But  for  want 
of  diligence  in  finding  the  consignee 
and  giving  notice  of  the  arrival  of 
the  goods,  the  carrier  is  liable  for 
the  damages  resulting  from  a  delay 
in  the  receipt  of  the  goods  by  the 
consignee,  occasioned  by  such  want 
of  diligence.  He  can  only  relieve 
himself  from  liability  by  storing  the 
goods,  after,  by  the  use  of  reasonable- 
diligence,  he  is  unable  to  find  the 
consignee.  Witbeck  v.  Holland,  45 
N.  Y.  13.  A  common  carrier  has  not 
performed  his  contract  as  carrier 
until  he  has  delivered  or  offered  to 
deliver  the  goods  to  the  owner,  or 
done  what  the  law  esteems  equiva- 
lent to  a  delivery.  Smith  v.  Nassau 
&  Lowell  R.  Co.,  7  Foster  (N.  H.),  86; 
Price  V.  Powell,  3  Comst.  322.  When 
the  consignee  is  unknown  to  the  car- 
rier, a  due  effort  to  find  him  is  a 
condition  precedent  to  a  right  to 
warehouse  the  goods,  and  as  notice 
to  the  consignee  takes  the  place  of 
a  personal  delivery  of  the  goods,  and 
as  a  due  and  unsuccessful  effort  to 
find  the  consignee  will  alone  excuse 


580 


dH.  XI.]      TEKMINATION   OF   LIABILITY "WAEEHOUSEMEN.        [§  575. 

mercial  and  maritime  law  a  carrier  by  water  must  carry  from 
port  to  port  or  from  wharf  to  wharf.  He  is  not  bound  to  de- 
liver goods  at  the  warehouse  of  the  consignee;  it  is  the  duty 
of  the  consignee  to  receive  his  goods  out  of  the  ship  or  upon 
the  wharf."  ^ 

While  this  may,  under  certain  conditions  and  circumstances, 
be  true,  there  are  times  and  conditions  when  the  consignee 
cannot  be  notified  in  time;  when  the  ship  must  be  unladen  be- 
fore a  reasonable  time  can  be  given  the  consignee  to  appear 
and  receive  his  goods;  and  it.  is  held,  and  there  is  no  serious 
opposition  to  the  holding,  that  the  ship's  master  cannot  ter- 
minate the  Ijability  of  the  ship's  owner  as  a  common  carrier 
by  unloading  the  goods  upon  the  wharf  and  leaving  them  there, 
unless  it  is  done  in  compliance  with  a  clearly-established  course 
of  business  between  the  parties  in  relation  to  the  mode  of  de- 
livering the  goods.^  "A  discharge  from  the  vessel  at  a  proper 
place,  seasonable  hour,  and  upon  due  notice  to  the  consignee, 
does  not  discharge  the  carrier  from  all  responsibility  for  the 
safety  of  the  goods.  It  may,  under  some  circumstances,  be  re- 
garded as  a  delivery  to  the  consignee,  and  a  performance  of 
the  contract  of  affreightment,  so  as  to  discharge  the  ship- 
owner from  the  strins^ent  liabilitv  of  a  carrier;  but  such  cases 
are  exceptional,  and  as  a  rule,  if  for  any  reason  the  consignee 
does  not  appear  to  claim  the  goods,  or  does  not  receive  them, 
it  is  the  duty  of  the  carrier  to  provide  a  proper  place  of  de- 

the  want  of  such  notice,  it  follows  not  be  regulated  or  prescribed  by 

that  if  a  reasonable  and  diligent  ef-  any  fixed  standard,  as  the  standard 

fort  is  not  made  to  find  the  consignee,  must  shift  with  the  varying  circum- 

the  carrier  is  liable  for  the  conse-  stances  of  each  case."    Westchester 

quence  of  the  neglect.     What  is  a  &  Phila.  R.  Co.  v.  McElwee,  67  Pa. 

due,  a  reasonable  effort,  and  what  is  St  211. 

proper  and  reasonable  diligence,  de-  i  Dibble  v.  Morgan,  1  Woods,  406. 
pends  necessarily  very  much  upon        2 story  on    Bailm.,   sec.   545;    Os- 

tlie  circumstances  of  each  case,  and,  trander  v.  Brown,  15  Johns.  (N.  Y.) 

in  the  nature  of  things,  is  a  question  39;    Fisk   v.    Newton,    1    Denio,   45; 

of  fact  for  the  jury,  and  not  of  law  2  Kent's  Com.  605.     In  Richardson 

for  the  court.     What  would  be  rea-  et  al.    v.   Goddard  et  al.,  2',i    How. 

sonably  sufficient  in  one  place  might  (U.  S.)  28,  the  court  say:  *'  When  the 

be   entirely  inadequate  and  insuffi-  goods  are  not  accejrted  by  the  con- 

cient  in  another,  and  the  extent  and  signee,  the  carrier  should  put  them 

character  of  the  inquiries  to  be  made,  in  a  place  of  safety,  and  when  he  has 

in  the  exercise  of  a  reasonable  dih-  so  done  he  is  no  longer  liable  on  his 

gence  on  the  part  of  the  carrier,  can-  contract  of  affreightment." 

581 


§  576.]  CARRIERS.  [part   V. 

posit,  or  in  case  of  imported  goods,  subject  to  duty,  to  see 
that  they  are  in  proper  custody.  The  general  rule  is,  and 
to  it  there  are  no  recognized  exceptions,  if  the  consignee  is 
unable  or  refuses  to  receive  the  goods,  the  carrier  is  not  at 
liberty  to  leave  them  on  the  wharf,  but  it  is  his  duty  to  take 
care  of  them  for  the  owner.  ...  It  follows  that  until  this 
is  done  the  liability  of  the  carrier  continues.  If  it  be  con- 
ceded that  a  carrier  by  water  may  discharge  himself  from  lia- 
bility by  delivering  merchandise  upon  a  wharf,  with  notice 
to  the  consignee,  the  latter  is  entitled  to  a  reasonable  time  to 
remove  them,  and  the}'"  are  at  the  risk  of  the  carrier  until  a 
reasonable  time  for  such  removal  has  elapsed;  and  a  right  to 
put  the  goods  in  store  for  the  consignee  does  not  exist  until 
the  latter  has  had  a  reasonable  time  for  their  removal."  This 
is  the  language  of  the  court  in  Redmond  v.  Liverj>ool  Steam- 
hoat  Go} 

It  has  been  held,  and  it  seems  to  be  in  harmony  with  the 
weight  of  authority  upon  the  subject,  "that  where  delivery 
cannot  be  made  at  the  point  of  destination,  such  prudent  care 
of  the  goods  and  their  diligent  and  safe  delivery,  with  notice 
to  the  consignee  or  owner,  as  best  comports  with  the  interest  of 
the  owner  according  to  the  circumstances,  will  excuse  the  car- 
rier; but  it  devolves  upon  the  carrier  to  allege  and  prove  such 
matter  of  excuse."^  So  it  would  appear  that  not  only  is  the 
master  of  the  ship,  or  the  ship's  owner,  bound  to  give  notice, 
but  he  must  give  reasonable  notice  so  that  the  consignee  can 
have  reasonable  time  to  obtain  the  goods.  And  then,  too,  the 
goods  must  be  in  a  suitable  condition  for  removal;  so  separated 
from  the  mass  of  other  goods  unloaded  that  the  consignee  may 
select  them.  It  would  follow,  therefore,  that  the  ship's  owner 
must  provide  a  suitable  place  for  landing  and  taking  care  of 
the  goods  he  carries  until  they  can  be  delivered  to  the  con- 
signee. 

§  576.  Notice  must  be  actual,  and  for  a  removal  of 

goods  at  a  proper  time,  if  time  fixed.—  The  notice  of  the  ar- 
rival of  the  goods,  and  of  the  readiness  of  the  carrier  to  deliver 
them,  must  be  an  actual  notice  to  the  owner  or  consignee;  it 
would  not  be  sufficient  to  give  a  public  notice,  as  by  printing 

146  N.  Y.  578,  583.  48  Ind.  596;  Robinson  v.  Chittendon, 

2  Green,  etc.  Nav.  Co.  v.  Marshall,     14  N.  Y.  Super,  133. 

583 


CH.  XI.]        TERMINATION   OF    LIABILITY WAREHOUSEMEN.       [§  5YT. 

in  a  newspaper  or  posting  in  a  public  place.  Then,  too,  the 
time  for  removal  must  be  a  proper  time;  at  some  time  during 
business  hours,  and  not  at  night  or  some  unusual  time,  nor  upon 
a  Sunday  or  national  holiday,  like  the  Fourth  of  July,  or  Christ- 
mas or  New  Year's  day. 

§577.  Contract  —  Usage  —  Course  of  dealing. —  The 

necessity  of  giving  notice  of  the  arrival  of  the  goods  may  be 
dispensed  with  b}^  contract.  When  this  is  done  the  consignee 
or  owner  must  wait  for  the  arrival  of  the  ship  so  that  he  can 
receive  the  goods  from  her  port.  But  it  is  said  that  if  in  such 
case  the  master  is  guilty  of  gross  negligence  and  exposes  the 
goods  to  peril,  he  would  still  be  liable.  Such  contracts,  too, 
will  be  strictly  construed  against  the  carrier.^  "  It  is  a  per- 
vading rule  of  the  maritime  law  that  the  master  of  a  vessel 
intrusted  as  carrier  with  the  custody  of  the  property  of  a  dis- 
tant owner  is  bound  to  exercise  reasonable  care  of  the  goods 
until  delivery  pursuant  to  the  contract.  This  duty  of  reason- 
able care  for  the  preservation  of  the  property  from  loss  arises 
in  all  situations  and  in  all  emergencies.  It  is  in  accordance 
with  this  general  obligation  tliat,  in  the  absence  of  any  special 
stipulations  in  the  bill  of  lading,  if  a  cargo  be  duly  landed,  on 
notice  to  the  consignee  at  the  port  of  destination,  and  the  con- 
signee fails  to  appear  or  refuses  to  take  the  goods,  the  master 
cannot  abandon  them,  but  is  responsible  for  reasonable  care  of 
the  goods,  and  must  either  hold  them  as  bailee  or  store  thera 
on  the  shipper's  account.  Where  the  stipulations  of  the  bill 
of  lading  require  the  consignee  to  be  present  and  receive  the 
goods  as  soon  as  the  vessel  is  ready  to  unload,  and  that  they 
shall  be  at  the  consignee's  risk  as  soon  as  landed  on  the  dock, 
and  the  consignee  is  duly  notified,  and  attends  in  order  to  ac- 
cept the  goods  as  landed,  and  takes  more  or  less  charge  of 
them,  the  stipulation  is  held  to  exempt  the  ship  from  subse- 
quent loss  or  damage.  In  such  cases,  as  the  consignee  has  due 
notice  of  discharge,  and  accepts  the  goods,  the  duty  of  protect- 
ing the  property  is  cast  by  the  contract  upon  him,  and  the 
ship  is  relieved.  ...  As  respects  all  such  stipulations  in- 
serted by  the  carrier  for  his  exemption  from  liability,  the  or- 
dinary rule  is  that  they  are  to  be  strictly  construed.  They 
are  not  to  be  extended  by  implication  beyond  the  fair  import 

^  The  Boskenna  Bay,  22  Fed.  6G2;  Hutch,  on  Car.,  sec.  366a. 

583 


§§  578,  579.]  CARRIERS.  [part  v. 

or  necessary  meaning  of  their  terms.  Still  less  do  theyexempt 
from  negligence  or  from  the  duty  of  ordinary  care  imposed  by 
law  upon  the  carrier,  unless  that  be  expressly  stated,  or  unless 
the  stipulations  can  otherwise  have  no  effect  at  all.  Thus,  a 
general  provision  that  goods  shall  be  carried  at  the  'owner's 
risk '  does  not  excuse  the  carrier  from  the  duty  of  ordinary 
care.  It  is  well  settled  in  the  federal  courts  that  all  stipula- 
tions, indirect  as  well  as  direct,  inserted  by  the  carrier  for  ex- 
emption from  loss  by  his  own  negligence,  are  void,"  ^ 

§578.  Usage  —  Course  of  dealing. —  If   there  be   a 

usage  well  understood  and  acted  upon  by  the  carrier  and  the 
consignee  to  an  extent  that  it  may  be  said  that  with  the  parties 
interested  it  has  come  to  be  a  usual  course  of  business  to  re- 
ceive the  goods  at  the  dock  on  the  arrival  of  the  ship  without 
notice,  no  doubt  such  usage  and  course  of  business  would  ex- 
cuse the  carrier.  As,  for  example,  where  the  consignee  has 
his  place  of  business  near  the  dock  or  landing  of  the  vessel, 
and  has  been  in  the  habit  of  receiving  his  freight  there  at  her 
dock  for  a  long  time,  so  that  it  may  be  said  that  it  has  become 
to  be  a  long  continued  course  of  business,  in  such  case  the 
requirement  that  the  carrier  should  giv^e  him  notice  would  be 
waived.  And  where  it  appeared  that  "it  had  been  the  long 
continued  practice  of  a  manufacturing  company  to  ship  its 
goods  daily  by  a  regular  line  of  steamboats  consigned  to  its 
agent  for  sale,  and  it  had  been  part  of  the  regular  routine  of 
business  of  the  agent,  without  notice,  to  call  for  and  receive 
the  goods  upon  their  arrival  each  day  at  the  carrier's  wharf  at 
the  place  of  destination,  and  to  remove  them,  a  specific  notice 
from  the  carrier  of  the  arrival  of  each  parcel  is  not  necessary. 
The  duty  of  the  carrier,  as  such,  is  performed  when  the  goods 
are  landed  at  the  accustomed  place  and  the  consignee  has  had 
a  reasonable  time  to  remove  them.  But  if  the  goods  are  re- 
ceived upon  a  holiday,  and  it  has  been  the  usage  for  the  con- 
signee not  to  receive  goods  upon  those  days,  he  is  entitled  to 
a  reasonable  time  after  that  day  to  remove  them."  ^ 

§  579.  Consignee  cannot  prolong  liability  as  carrier. — 
The  consignee  cannot  prolong  the  liability  of  the  common  car- 
rier by  inattention  to  the  notice  that  his  goods  have  arrived 

1  Dixon  V.  The  Surrey,  26  Fed.  791. 

2  Russell  Mfg.  Co.  v.  N.  H.  S.  Co.,  50  N.  Y.  121, 

584 


oil.  XI.]       TERMINATION    OF    LIABILITY  —  WAREHOUSEMEN.        [§  580. 

and  await  delivery.  It  is  his  duty  to  at  once  attend  to  the 
matter  and,  at  least  in  a  reasonable  time,  call  for  the  goods, 
pay  the  charges  and  take  them  away;  or  if  there  are  reasons 
why  he  should  not  do  so,  inform  the  carrier  of  the  reason. 
And  where  the  car  containing  the  goods  arrived  at  the  car- 
rier's station,  and  the  consignee  received  notice  of  the  arrival 
of  the  goods  the  following  morning  about  nine  o'clock,  and  at 
ten  o'clock  sent  a  truck  for  a  load  of  the  goods,  which  were 
unloaded  at  consignee's  place  of  business  about  three  o'clock 
in  the  afternoon,  the  evidence  showing  that  he  might  have 
taken  away  t\YO  more  loads  before  the  hour  of  closing  with 
one  truck,  the  court  in  its  opinion  said:  "The  plaintiffs  seek 
to  hold  the  defendant  to  a  strict  liability  as  insurer  of  the 
goods.  Asking  that  so  rigid  a  rule  be  applied  to  the  defend- 
ant, it  is  just  that  the  plaintiffs  in  turn  be  held  to  prompt  and 
diligent  action.  A  consignee  cannot,  after  he  has  notice  of 
the  arrival  for  him  of  property,  defer  taking  it  away  while  he 
attends  to  his  other  affairs.  He  may  not  thus  prolong  the 
time  during  which  the  carrier  shall  remain  liable  as  an  insurer. 
That  would  be  to  make  the  carrier  a  mere  convenience  for  the 
consignee,  without  consideration  of  anv  kind  to  the  carrier, 
and  yet  resting  under  a  great  risk.  So  much  time  as  the  con- 
signee after  notice  gives  to  his  other  business,  to  the  neglect 
of  taking  charge  of  his  property  and  removing  it  from  the  cus- 
tody of  the  carrier,  cannot  be  allowed  to  him  in  estimating 
what  is  a  reasonable  time  for  him  in  which,  after  notice  of  ar- 
rival, to  take  delivery  of  his  goods.  He  is  not  to  be  compelled 
to  leave  all  other  business  to  take  his  goods  from  the  hands  of 
the  carrier.  He  may  attend  first  to  whatsoever  demand  of  his 
business  he  deems  the  most  urgent  or  the  most  profitable;  but 
he  cannot  do  this  at  the  hazard  and  expense  of  the  carrier.  It 
is  the  duty  of  the  carrier  to  give  notice  of  arrival;  it  is  the  duty 
of  the  consignee  at  once,  and  with  diligence,  to  act  upon  this 
notice  and  to  seek  delivery,  and  to  continue  until  delivery  is 
complete.  Either  may  neglect  this  his  duty;  but  then  the  con- 
sequence of  neglect  must  be  borne  by  him."  ^ 

Carriers  by  Railroad. 
§  580.  Termination  of  liability. —  The  same  rigid  rule  ap- 
plies to  the  common  carriers  by  railroad  that  apj)lies  to  all 

1  Hedges  et  aU  v.  H.  R.  R.  Co.,  49  N.  Y.  223,  226. 

585 


§  5S1.]  CARRIERS.  [PAKT   V. 

others.  It  is  bound  to  deliver  the  freight  to  the  consignee,  or 
the  person  lawfully  entitled  to  receive  it,  and  he  will  not  be 
excused  for  misdelivery.  "  There  must  be  an  actual  delivery  to 
the  proper  person."  But  the  railroad  company,  like  the  carrier 
by  water,  is  not  bound  to  deliver  the  goods  personally  to  the 
consignee  as  is  the  express  company,  for  reasons  which  we  have 
before  stated.  The  question  that  lias  elicited  a  great  deal  of 
interest  in  this  country,  and  one  as  to  which  the  authorities 
are  not  in  harmony,  is,  what  must  the  railroad  carrier  do  upon 
the  arrival  of  the  freight  at  its  destination  in  order  to  termi- 
nate its  liability  as  a  common  carrier?  Under  what  circum- 
stances can  it  cease  to  be  an  insurer  and  become  simply  a 
Avarehouseman  of  whom  the  consignee  or  owner  can  require 
only  ordinary  diligence  and  hold  it  only  for  ordinary  negligence? 

§  581.  Three  distinct  views. —  Upon  this  question  there  are 
in  this  country  three  distinct  holdings,  each  giving  strong  rea- 
sons for  their  opinions  and  each  supported  by  the  strongest 
jurists  of  our  courts.  (1)  The  first,  led  by  the  Massachusetts 
court,  holds  "  that  when  the  transit  is  ended,  and  the  carrier 
has  placed  his  goods  in  the  warehouse  to  await  delivery  to  the 
consignee,  his  liability  as  carrier  is  ended  also,  and  he  is  re- 
sponsible as  warehouseman  only."^ 

(2)  The  second  class,  led  b}^  the  New  Hampshire  court,  holds 
"  that  merely  placing  the  goods  in  the  warehouse  does  not 
discharge  the  carrier,  but  that  he  remains  liable  as  such  until  the 
consignee  has  had  reasonable  time  after  their  arrival  to  inspect 
and  take  them  away  in  the  common  course  of  business."* 

1  Thomas  v.  Boston  R.  Co.,  10  Met.  Chicago,  etc.  R.  Co.,  40  Iowa,  579,  and 

472,  43  Am.  Dec.  444;  Norway  Plains  other  cases.     Georgia:    Ga.  etc.    R. 

Co.  V.  Boston,  etc.  R.  Co.,  1  Gray,  263,  Co.  v.  Tliompson.  86  Ga.  327,  and  cases 

61  Am.  Dec.  423;  Rice  v.  Boston  R.  cited.     See  also  Georgia  Code,  sec. 

Corp.,   98  Mass.  212,  and  numerous  2070.     Missouri:   Gashweiler  v.  Wa- 

other  decisions  found  in  the  state,  bash  R.  Co.,  83  Mo.   112,  and  many 

See  100  Mass.  455,  145  Mass.  132,  and  other  cases.    North  Carolina;  South 

others.     Among  some  of  the  states  Carolina;    Pennsylvania:    McCurty 

following  the  Massachusetts  rule,  as  v.  New  York,  etc.  Co.,  30  Pa.  St.  447. 

it  is  called,  may  be  mentioned  lUi.  Tennessee:  East  Tenn.  etc.  R.  Co.  v. 

nois:  Gregg  v.  Illinois  Cent.  R.  Co.,  Kelly,  91  Tenn.  699,  and  other  cases. 
147  III.  550;  Chicago,  etc.  Co.  v.  Jen-        2  Closes  v.  Boston  &  M.  R.  Co.,  32 

kins,  103  111.  599.   and  many  others.  N.  H.  523.     This  is  perhaps  the  first 

Indiana:    Cincinnati,  etc.  R.  Co.   v.  case  that  took  issue  with  the  Massa- 

McCool,  26  Ind.  140.    Iowa:   Mohr  v.  chusetts    rule.     As    following    this 

586 


CH.  XI.]       TERMINATION    OF   LIABILITY WAREHOUSEMEN.         [§  582. 

(3)  The  third  class  holds  that  the  liability  of  the  carrier  con- 
tinues until  the  consignee  has  been  notified  of  the  receipt  of 
the  goods,  and  has  had  reasonable  time  in  the  common  course 
of  business  to  take  them  away  after  such  notification.^ 

§582.  (1)  The  Massachusetts  rule. —  Some  of  the  ablest 
courts  of  the  Union  support  this  rule,  and  their  opinions  are 
learned  and  interesting.  In  Massachusetts  the  court  thoroughly 
discuss  the  doctrine  in  the  case  of  Norway  Plains  Co.  v.  Bos- 
ton, etc.  R.  Co.^  above  cited,  and  again  it  receives  attention  in 
the  case  of  Thomas  v.  Boston  E.  Co.,  already  cited.  In  the 
latter  case,  following  the  same  theory  and  doctrine  of  the 
former,  the  court  proceed  upon  the  principle  that  the  transpor- 
tation and  the  storage  of  goods  must  depend  upon  contracts  of 
very  different  character,  and  that  although  one  person  or  com- 
pany might  render  both  services,  yet  the  two  contracts  are 
different  because  the  liabilities  attending  each  are  not  the 
same.  The  court  say :  "  The  proprietors  of  a  railroad  trans- 
port merchandise  over  their  road,  receiving  it  at  one  depot,  or 
place  of  deposit,  and  delivering  it  at  another  agreeably  to  the 
directions  of  the  owner  or  consignor.  But  from  the  very 
nature  and  peculiar  construction  of  the  road  the  proprietors 
cannot  deliver  merchandise  at  the  warehouse  of  the  owner,, 
when  situated  off  the  line  of  the  road,  as  a  common  wagoner 
can  do.  .  .  .  They  can  deliver  it  only  at  the  terminus  of 
the  road,  or  at  the  given  depot  where  goods  can  be  safel}^  un- 
loaded and  put  in  a  place  of  safety.  After  such  delivery  at  a 
depot  the  carriage  is  complete.  But  owing  to  the  great  amount 
of  goods  transported,  and  belonging  to  so  many  different  per- 
sons, and  in  consequence  of  the  different  hours  of  arrival,  by 
night  as  well  as  by  day,  it  becomes  equally  convenient  and 

rule  may  be  noted  Alabama,  Ver-  16  Mich.  79,  93  Am.  Dec.  208;  Buck- 

mont,    Wisconsin,    Kentucky,   New  ley  v.  Great  Western  R.  Co.,  18  Mich. 

Jersey,  Louisiana  and  Kansas.  121;  Feige  v.  Mich.  Cent.  R.  Co.,  62 

1  Holding  to  this  doctrine  are  the  Mich.  1;  Black  v.  Ashley,  80  Mich, 

courts  of  New   York:  McDonald  v.  90.    Minnesota:  Kirk  v.  Chicago,  etc. 

Western   R.  Co.,  34  N.  Y.  497.     See  Co.,  39  Minn.  161,  and  cases  cited. 

Angell  on  Carriers,  sec.  313.     See  also  Nebraska:    Burlington,    etc.    Co.   v. 

a  long  list  of  cases  upon  these  several  Arms,  13  Neb.  69.    Ohio:  Lake  Erie, 

classes  collected  from  New  York  and  etc.  Co.  v.   Hatch,  52  Ohio  St.  408. 

other  states.     5  Am.   &  Eng.  Ency.  Texas  has  a  statute  regulating  lia- 

of  Law  (2d  ed.).  266.     Michigan:  'Mc-  bility.    The  jE'vigKs/i  courts  hold  with 

Millan  V.  Michigan  Southern  R.  Co..  the  third  class. 

587 


§  583.]  CAKRIEES.  [PAET   V. 

necessary,  both  for  the  proprietors  of  the  road  and  the  owner 
of  the  goods,  that  they  should  be  unloaded  and  deposited  in  a 
safe  place,  protected  from  the  weather  and  from  exposure  from 
thieves  and  pilferers;  and  where  such  suitable  warehouses  are 
provided,  and  the  goods  which  are  not  called  for  on  their  ar- 
rival at  the  place  of  destination  are  unloaded  and  separated 
from  the  goods  of  other  persons  and  stored  safely  in  such  ware- 
houses or  depots,  the  duty  of  the  proprietors  as  common  car- 
riers is,  in  our  judgment,  terminated;  they  have  done  all  they 
agreed  to  do;  they  have  received  the  goods,  have  transported 
them  safely  to  the  place  of  delivery,  and,  the  consignee  not 
being  present  to  receive  them,  have  unloaded  them  and  have 
put  them  in  a  safe  and  proper  place  for  the  consignee  to  take 
them  away,  and  he  can  take  them  at  any  reasonable  time.  The 
liability  of  the  common  carrier  being  ended,  the  proprietors 
are  by  force  of  law  depositaries  of  the  goods  and  are  bound  to 
reasonable  diligence  in  the  custody  of  them,  and  consequently 
are  only  liable  to  the  owners  in  case  of  a  want  of  ordinary 
€are." 

§  583,  (2)  The  New  Hampshire  rule. —  The  IS'ew  Hampshire 
rule,  or  the  second  class,  was  very  learnedly  discussed  in  the 
case  of  Hoses  v.  Boston^  etc.  R.  Co.,  above  cited.  The  courts 
holding  to  this  doctrine  proceed  upon  the  theory  that  the  con- 
signee must  have  had  notification  from  the  consignor  that  the 
goods  were  shipped,  and  that  it  becomes  his  duty  to  take  notice 
of  the  general  course  of  business  of  the  carrier;  the  time  of 
departure  and  arrival  of  trains,  and  when  the  freight  may  be 
expected;  holding  that  the  consignee  should  be  given  a  reason- 
able time  after  it  has  arrived  in  which  to  receive  it  from  the 
carrier.  These  courts  hold  that  even  while  the  freight  is  being 
unloaded,  and  while  it  is  in  the  hands  of  the  common  carrier, 
the  same  reasons  exist  for  holding  the  common  carrier  to  the 
extraordinary  liability  that  existed  during  the  time  it  was  in 
transit.  And  in  the  case  cited  the  court  say:  "But  while  it  is 
in  the  process  of  unloading,  and  afterwards  while  awaiting  re- 
moval, it  must  be  protected  from  the  weather  and  from  depre- 
dation. Freight  is  brought  over  the  road  at  all  hours,  by  night 
as  well  as  by  day,  and  the  trains  must  necessarily  be  more  or 
less  irregular  in  the  hours  of  their  arrival.  It  cannot  be  re- 
quired of  the  consignee  to  attend  at  the  precise  moment  when 

588 


J 


CH,  XI,]       TERMINATION    OF    LIABILITY  —  WAREHOUSEMEN.        [§  584, 

his  goods  arrive,  to  receive  and  take  care  of  them,  and  the 
company  cannot  discharge  themselves  from  responsibility  by 
leaving  them  in  an  exposed  condition  in  the  open  air.  Until 
the  goods  have  passed  out  of  their  custody  and  control  into 
the  hands  of  the  proper  person  to  receive  them,  they  have  a 
duty  to  perform  in  the  preservation  and  protection  of  the  prop- 
erty, even  after  their  responsibility  as  common  carrier  is  at  an 
end."  And  again:  "The  same  persons  —  the  servants  of  the 
compan}''  —  continue  in  the  exclusive  possession  and  control  of 
the  goods  as  when  they  were  on  their  transit,  and  they  are 
equally  shut  up  from  the  observation  and  oversight  of  all  oth- 
ers. The  consignee  has  had  no  opportunity  to  know  that  they 
have  arrived,  and  in  what  condition,  and  is  in  no  better  situa- 
tion to  disprove  the  fact,  or  to  question  any  account  the  serv- 
ants of  the  company  having  them  in  charge  may  choose  to  give 
of  what  may  happen  to  them  after  they  are  so  removed  from 
the  cars,  or  what  has  happened  prior  thereto,  than  before.  If 
purloined,  destroyed  or  damaged  by  their  fraud  or  neglect 
subsequently  to  their  removal  and  before  he  can  have  had  the 
opportunity  to  come  for  them,  he  is  left  to  precisely  the  same 
proof  as  if  the  larceny  or  injury  had  occurred  while  they  were 
actually  in  transitu.'''' 

§  581.  (3)  The  rule  demanding  notice  to  consignee, —  But 
the  reasoning  of  these  courts  does  not  seem  to  be  satisfactory. 
Indeed,  the  very  reasoning  of  the  New  Hampshire  court  and  of 
those  which  follow  that  class  of  holdings  would  seem  to  be  an 
argument  in  favor  of  the  rule  that  justice  and  fair  dealing  de- 
mand that  the  consignee  should  have  notice  of  the  arrival  of 
the  goods,  and  of  the  readiness  of  the  carrier  to  deliver  them. 
And  it  would  seem  in  these  days,  the  carrying  of  goods  over 
long  distances,  and  the  great  increase  in  railroads  and  freight- 
age, would  determine  the  necessity  of  the  rule  that  the  con- 
signee should  receive  notice  of  the  arrival  of  the  property. 
This  rule  is  very  ably  discussed  by  Judge  Cooley  in  McMillan 
V.  Mich.  Cent  Ry.  Co}  In  the  course  of  the  opinion  the  judge 
says:  "  The  man  who  sends  his  goods  by  railroad,  and  who  de- 
sires to  receive  them  as  soon  as  they  reach  their  destination, 
has  commonly  no  design  to  employ  the  railroad  company  in 
any  other  capacity  than  that  of  carrier.     If  any  other  relation 

1 16  Mich.  79. 
589 


§§  585-587.]  CAEKIEKS.  [PAET   V. 

than  that  is  formed  between  them,  it  is  one  that  the  law  forms 
upon  considerations  springing  from  the  usages  of  business,  and 
having  reference  to  the  due  protection  of  the  interests  of  both. 
The  owner  wants  storage  only  until  he  can  have  time  to  remove 
the  goods;  and  the  warehousing  is  only  incidental  to  the  car- 
rying. Payment  for  the  transportation  is  payment  also  for 
the  incidental  storage.  The  owner  has  been  willing  to  trust 
to  the  company  as  carriers,  because  the  law  makes  them  insur- 
ers ;  but  he  might  not  be  willing  to  trust  them  as  warehouse- 
men under  a  liability  so  greatly  qualified,  and  in  a  trust  which 
implies  generally  a  considerable  degree  of  personal  confidence." 

§585.  What  will  excuse  delivery. —  The  carrier  will,  of 
course,  be  excused  from  delivering  the  goods  when  they  have 
been  lost  in  transit  by  reason  of  the  happening  of  an  event 
which  excuses  the  carrier  from  liability;  as  where  the  loss  was 
occasioned  by  the  act  of  God,  the  public  enemy,  or  as  the  result 
of  the  act  of  the  shipper,  the  inherent  nature  of  the  goods,  or 
from  public  authority.  These  have  all  been  fully  discussed. 
The  carrier  will  also  be  excused  when  the  goods  have  been 
stopped  in  transit  by  the  vendor  exercising  his  legal  right  to 
do  so,  and  claiming  the  goods. 

§  586.  Stoppage  in  transitu. —  Stopping  the  goods  in  tran- 
sit is  a  privilege  given  to  the  vendor  under  certain  circum- 
stances, and  in  some  ways  is  similar  to  the  vendor's  lien.  In- 
deed, it  has  been  said  "that  it  is  nothing  more  than  an  ex- 
tension of  the  vendor's  common-law  lien  upon  goods  for  his 
price,  and  has  no  effect  of  itself  upon  the  contract."^  It  is  a 
right  peculiarly  for  the  protection  of  the  vendor  of  the  goods. 
Where  the  vendor  has  sold  goods  to  a  vendee  and  has  put  them 
into  the  hands  of  the  carrier  for  delivery  to  the  buyer,  and 
then  discovers  that  the  buyer  is  insolvent,  he  may  repossess 
himself  of  the  goods,  and  for  this  purpose  may  stop  their  tran- 
sit in  the  hands  of  the  carrier  at  any  time  before  they  are  de- 
livered to  the  buyer. 

§  587,  The  law  favors  the  right. —  Stoppage  of  the  goods 
in  transit  is  favored  by  the  law  because  it  is  just.  It  is  grounded 
upon  the  plain  reasons  of  justice  and  equity  that  one  man's 
property  shall  not  be  applied  to  the  payment  of  another  man's 

1  Rowley  v.  Bigelow,  12  Pick.  313;  Rogers  v.  Thomas,  20  Conn.  53;  Atkins 
V.  Colby,  20  N.  H.  154. 

590 


CH.  XI.]     TERMINATION  OF  LIABILITY — WAREHOUSEMEN.      [§§  58S-9. 

debts.  "  The  right  itself  is  regarded  as  an  extension  merely  of 
the  lien  for  the  price  which  the  seller  of  the  goods  has  on  them 
while  remaining  in  his  possession;  which  lien  the  courts  will 
not  permit  to  be  superseded  before  the  vendee,  who  has  be- 
come insolvent,  obtains  possession,  unless  in  the  meantime  the 
goods  have  been  sold  to  a  person  who  in  good  faith  has  paid 
value  for  them,  and  so  would  be  a  loser  by  his  purchase  if  that 
were  held  invalid."  ^ 

§  588.  Som«  requisites  to  the  right  to  exercise  stoppage 
in  transitu. —  Two  conditions  must  exist  in  order  to  give  the 
vendor  the  right  to  exercise  the  privilege  of  stopping  the  goods 
in  transit:  (1)  The  goods  must  have  been  sold  on  credit;  and 
(2)  the  buj^er  must  be  insolvent,  and  the  insolvency  not  known 
to  the  seller  at  the  time  of  sellino^  the  goods. 

The  right,  however,  is  not  defeated  or  destroyed  by  part 
payment  of  the  purchase  price,  or  by  the  acceptance  of  a  bill 
of  exchange  or  promissory  note  for  a  part  of  the  price.^  The 
insolvency  of  the  buyer  must  exist  at  the  time  of  exercising 
the  right,  and  it  is  said  it  is  immaterial  that  the  insolvency 
existed  at  the  time  of  the  sale  of  the  goods,  provided  the  seller 
was  ignorant  of  the  fact.^  If  the  vendor  knew  that  the  buyer 
was  insolvent,  he  could  not  avail  himself  of  the  right;  but  if 
he  did  not  know  at  the  time,  and  after  delivering  the  goods 
to  the  carrier  for  delivery  to  the  buyer  he  discovers  the  fact, 
he  can  exercise  the  right  and  retake  the  goods.^ 

§589.  How  exercised  —  Notice  by  whom  —  To  whom. — 
No  formal  manner  of  exercising  the  right  is  required ;  any  no- 
tice, clear  and  unequivocal,  to  the  carrier  who  has  the  goods 
in  his  possession  and  control  to  withhold  the  delivery  of  the 
goods  to  the  buyer,  stating  his  claim,  and  ordering  that  the 
goods  be  either  held  by  the  carrier  to  his  own  order  or  re- 
turned to  him,  may  be  sufficient.^     The  notice  should  be  given 

1  Loeb  V.  Peters,  63  Ala.  243,  85  Am.  O'Brien  v.  Norris,  16  Md.  122.  When 
Rep.  17.  insolvency  is  known  at  the  time  of 

2  Feise  et  al.  v.  Wray,  3  East,  93;  2  the  sale.  Fenkhausen  v.  Fellows,  20 
Addison  on  Contracts,  188.  Nev.   312;    Emerson    v.   Peteler,    35 

3  Loeb  V.  Peters,  63  Ala.  243,  35  Minn.  481,  29  N.  W.  312,  4  L.  R.  A. 
Am.  Rep.  17.  732. 

4  Farrell  v.  Richmond  Ry.  Co.,  102  5  Allan  v.  Railway  Co.,  79  Me.  327; 
N.  C.  390,  3  L.  R.  A.  647;  Benedict  v.  Reynolds  v.  Railway  Co.,  43  N.  H. 
Schaettle,  12  OhioSt.  515;  Reynolds  580;  Howe  v.  Stewart,  40  Vt.  145; 
V.  Boston,  etc.  R.  Co.,  43  N.  H.  583;  Hutchinson,  Car.  410. 

591 


§  590.]  CAJRKIEKS.  [PAET   V. 

by  the  vendor  of  the  goods,  or  his  agent,  to  the  carrier  who  has 
the  goods  for  transportation  and  before  they  are  delivered  to 
the  buj^er.  The  carrier  has  the  right  to  know,  indeed  it  is  his 
duty  to  know,  that  the  notice  comes  from  one  having  authority, 
and  for  that  purpose  he  may  make  inquiry  and  investigation, 
for  he  would  have  no  right  to  withhold  the  delivery  of  the 
goods  to  the  consignee  upon  a  notice  from  one  who  did  not 
have  authority  to  give  it,  as  from  a  stranger.^  And  where  the 
consignor,  after  notice  to  the  carrier  to  hold  the  goods  shipped, 
unreasonably  refused  to  furnish  him  with  any  evidence  of  the 
validity  of  his  claim,  it  was  held  that  such  refusal  might  be 
construed  as  a  waiver  of  his  right.- 

§  590.  How  can  the  right  be  defeated. —  The  right  cannot 
be  exercised  if  the  goods  have  been  delivered  to  the  buj^er,  or  to 
his  agent,  before  the  carrier  has  notice  to  withhold  them.  The 
notice  must  come  to  the  carrier  while  the  goods  are  in  his  con- 
trol. The  carrier's  responsibility,  it  will  be  seen,  is  to  both  the 
seller  and  the  buyer,  or  those  claiming  under  him.  Should 
he  fail  to  obe}"  the  notice  of  the  buyer,  when  properly  given, 
he  may  become  liable  for  the  value  of  the  goods;  should  he 
obey  the  notice  without  the  legal  right,  the  liability  would  be 
just  as  great  for  the  assignee  or  the  creditors  of  the  buyer,  and 
if  not  to  these  he  might  be  liable  to  the  buyer. 

If  the  goods  have  come  to  the  possession  of  the  buyer,  then 
they  are  out  of  the  control  of  the  carrier  and  the  notice  would 
be  too  late;  they  may  have  arrived  at  the  place  of  delivery; 
but  the  question  always  is,  are  they  still  controlled  by  the 
carrier  ? 

Where  a  quantity  of  logs  was  bargained  for  and  sold  to  be 
delivered  over  a  certain  dam  at  the  outlet  of  a  lake,  thence  to 
be  driven  by  a  certain  log-driving  company  to  the  purchaser's 
booms  and  mills,  it  was  held  that  the  right  of  stoppage  in 
transitu  remained  in  the  seller  until  the  logs  came  into  the 

1  The  vendor  of  goods  notified  an  the  vendor  for  conversion.  Jones  v. 
agent  of  the  carrier  that  the  vendee  Earle,  37  Cal.  630,  99  Am.  Dec.  388. 
had  been  attached;  that  the  vendor  A  notice,  although  it  does  not  con- 
desired  to  save  the  goods,  and  to  de-  tain  reasons,  is  held  good.  Allan  v. 
liver  them  to  any  one  but  the  agent  Me.  Cent.  Ry.  Co.,  79  Me.  327,  9  Atl. 
of  the  seller.     It  was  held  that  the  895. 

carrier,  who  afterwards  delivered  the        -Allan    v.   Maine    Cent.   Ry.   Ca, 

goods  to  the  vendee,  was  liable  to  79  Me.  327. 

592 


CII.  XI.]        TERMINATION    OF    LIABILITY WAREHOUSEMEN.        [§  590. 

actual  possession  of  the  buyer  at  his  boom,  and  the  buyer  hav- 
ing become  insolvent  in  the  meantime,  although  the  logs  had 
arrived  at  the  place  of  delivery,  the  seller  had  the  right  to  re- 
sume the  possession  of  them.^  And  where  the  goods  were  not 
received  by  the  bu3'er,  but  by  mortgagees  who  were  in  posses- 
sion of  his  store  when  the  goods  arrived,  under  a  mortgage, 
and  where,  at  the  time  of  the  deliver}'-  of  the  goods  shipped  to 
the  buyer,  "  his  store  and  stock  were  in  the  possession  of  an 
agent  who  represented  several  mortgagees  whose  mortgages 
were  given  after  the  goods  were  ordered,  and  under  one  of 
which  a  sale  was  made  at  about  the  date  of  such  delivery,  and 
the  goods  bid  in  by  one  of  the  mortgagees,  who  remained  in  pos- 
session, and  from  whom  and  the  merchant,  who  was  acting  as 
agent  for  the  mortgagee,  the  portion  of  the  goods  ordered  were 
replevied  by  the  vendor,  who  claimed  the  right  to  stop  them 
in  transit,"  it  was  held  that  this  was  not  a  delivery  to  the  buyer, 
and  if  he  was  insolvent  at  the  time  of  purchasing  the  goods, 
the  vendors  rights  were  paramount  to  any  acquired  at  the 
mortgage  sale.  The  court  say :  "  The  mortgagees  do  not  stand 
in  the  position  oihona  fide  purchasers  of  the  property;  the 
right  of  stoppage  could  not  be  divested  by  a  purchase  of  the 
goods  under  the  mortgage  sale;  the  transit  had  not  ended  un- 
less there  was  actual  delivery  to  the  buyer."  ^ 

An  attachment  against  the  buyer,  or  an  execution  levied  be- 
fore the  actual  delivery  of  the  goods,  will  not  defeat  the  right." 
The  buyer,  being  the  assignee  of  the  goods,  has  the  right  to 
take  them  from  the  carrier  at  any  intermediate  point  between 
the  shipping  point  and  destination,  and  if  he  does  so,  his  pos- 
session would  defeat  the  right  of  the  seller  to  stop  the  goods 
in  transit.  Whenever  and  wherever  the  goods  come  actually 
into  the  buyer's  possession,  then  and  there  the  right  is  de- 
feated.* 

1  Johnson  v.  Eveleth,  93  Me.  306,  and  the  stoppage  by  the  seller  to  be 

48  L.  R.  A.  50;  Shepperd,  etc.  R.  Co.  effective  must  occur  between  these 

-V.  Burrows,  62   N.  J.  L.  469.  41  Atl.  twopomts.  Hall  v.  Diamond,  63  N.  H. 

695;  Neimeyer  Lumber  Co.  v.  Bur-  565;  Walch  v.  Blakely,  6  Mont.  194, 

lington,  etc.  R.  Co.,  54  Neb.  321.  74  3  L.  R.  \.  648,  note. 

N.  W.  670.     When  the  carrier  takes  -  Kingman   v.  Dennison,  84  Mich, 

possession  from  the  seller  as  carrier,  608,  11  L.  R.  A.  347. 

the  transit  begins;  when  he  divests  '  Farrell  v.  Richmond,  etc.  Ry.  Co., 

himself  of  possession  in  such  capac-  102  N.  C.  390,  3  L.  R.  A.  647. 

ity  to  the   buyer,  the  transit  ends.  '♦Walch  v.  Blakely,  6  Mont.  694. 
38                                              593 


§  590.]  "  CARRIEES.  [PAJiT    V. 

So  an  assignment  of  the  bill  of  lading  to  a  hona  fide  pur- 
chaser who  pays  value  for  the  goods  will  defeat  the  right.' 
But  the  transfer  of  the  bill  of  lading  as  collateral  security  to  a 
previous  obligation,  without  any  new  consideration  advanced, 
does  not  constitute  such  an  assignment  as  will  defeat  the 
seller's  right  to  stop  the  goods.  "  "JSTothing  short  of  a  hona  fide 
sale  of  the  goods  for  value,  or  the  possession  of  them  by  the 
vendee,  can  defeat  the  vendor's  right  of  stoppage  in  transitu^ 
and  hence  it  has  been  held  that  an  assignee  in  trust  for  cred- 
itors of  the  insolvent  vendee  is  not  a  purchaser  for  value,  and, 
consequently,  takes  it  subject  to  the  exercise  of  any  right  of 
stoppage  in  transitu  which  may  exist  againt  the  assignor."  ^ 

A  mere  resale  of  the  goods  b}^  the  buyer,  however,  will  not 
defeat  the  right  of  the  first  seller  to  stop  the  goods,  for  it 
would  seem  that  such  a  sale  would  lack  the  element  of  deliv- 
ery; nor  would  there  be  any  evidence  of  the  right  to  make 
delivery  of  the  goods.  But  in  case  of  an  assignment  of  the 
bill  of  lading  to  a  hona  fide  purchaser  Avhich  stands  for  the 
goods,  and  may  be  delivered  as  the  goods,  the  case  assumes  a 
very  different  phase;  the  former  will  not  defeat  the  right,  but 
the  latter  sale  will.  "There  is  no  doubt,  if  the  vendee  makes 
a  resale  of  the  goods,  he  makes  it  subject  to  the  vendor's  right 
to  stop  the  goods  in  transitu.  But  this  is  while  the  goods  are 
ffoino^  to  the  first  vendee.  After  the  first  vendee  has  resold  them 
and  put  them  upon  their  second  passage,  the  transit,  between 
the  vendor  and  his  vendee,  is  at  an  end.  But  a  resale  will  not 
defeat  the  vendor's  right  to  stop  the  goods  in  transitu  until 
they  have  reached  their  first  destination,  unless  the  bill  of  lad- 
ing is  assigned,  or  the  vendee  has  anticipated  the  arrival  and 
taken  possession,  which  he  may  do,  or  the  vendor  consents  to 
the  resale." ' 

1  Currie  v.  Roulstone,  2  Overt.  'The  language  of  the  court  in  Eaton 
(Tenn.)  110;  Walter  v.  Ross,  2  Wash,  et  al.  v.  Cook.  33  Vt.  61;  Pattison  v. 
(D.  C.)  283;  Loeb  v.  Peters,  63  Ala.  Culton,  33  lud.  240,  35  Am.  Rep.  199. 
243,  35  Am.  Rep.  17;  Becker  v.  Hall-  A  sale  for  unpaid  freight  to  the  car- 
garden,  86  N.  Y.  167;  Lickbarrow  v.  rier  will  not  defeat  the  right.  Wheel- 
Mason,  1  Smith's  Ld.  Cas.  388.  ing,  etc.  R  Co.  v.  Coots,  65  Ohio  St. 

'^  Lesassier  v.  S.  W.  Co.,  2  Wood,  35;  551 ;  Mechem  on  Sales,  1562;  Schmidt 

Pattison  v.  Culton  et  al.,  33  Ind.  240,  v.  Steamship  Pennsylvania,  4  Fed. 

5  Am.  Rep.  199;  Harris  etal.  v.  Pratt,  548. 
17  N.  Y.  249. 

594 


■OH.  XI.]      TERMINATION  OF  LIABILITY WAKEHOUSEMEN.      [§§  591-2. 

§  591.  Lieu  of  the  carrier  for  freight  has  priority. —  The 

specific  lien  of  the  carrier  for  freight  and  storage  is  prior  to 
the  right  of  the  vendee  to  repossess  himself  of  the  goods; '  but 
it  has  been  held  that  a  clause  in  the  bill  of  lading  by  which 
the  carrier  has  a  lien  on  goods  shipped,  for  arrearage  of  freight 
and  charges  due  from  the  owners  and  consignee  on  other  goods, 
will  not  enable  the  carrier  to  hold  the  goods  shipped  on  ac- 
count of  freight  due  from  the  vendee  on  preceding  shipments, 
to  the  prejudice  of  the  vendor's  right  of  stoppage  in  transitu. 
That  is  to  say,  while  the  specific  lien  for  freight  and  storage 
on  the  goods  shipped  will  be  given  priority  over  the  vendor's 
right  to  stoppage  in  transit,  a  general  lien,  though  created  by 
w^ritten  contract,  will  not  have  priority,  for  it  is  but  a  claim 
of  no  greater  dignity  or  importance  than  the  claims  of  other 
x3reditors.^ 

§592.  Stoppage  in  transitu  —  Duty  of  carrier  —  Termi- 
nation of  liability. —  So  long  as  goods  are  in  the  control  of 
the  carrier,  the  notice  of  stoppage  in  transitu  may  be  given, 
for  during  all  this  time  the  goods  are  considered  to  be  in  tran- 
sit.^ If  the  goods  have  been  actually  or  constructively  deliv- 
ered to  the  vendee,  so  that  the  carrier  can  no  longer  control 
them,  then  the  carrier's  liability  has  terminated.     But  if  the 

1  Pa.  Steel  Co.  v.  Georgia,  etc.  R.  &  order  that  his  goods  may  '  not  be  ap- 

B.  Co.,  94  Ga.  636:  Rucker  v.  Dono-  plied  to    the    payment    of  another 

■vsM,  13  Kan.  251,  19  Am.  Rep.  84.  man's  debts,'  much  less  to  those  of 

^  Farrell  v.  Richmond,  etc.  Co.,  102  his  agent,  to  whom  he  delivers  them 
N.  C.  390,  11  Am.  St.  Rep.  760,  3  L.  for  carriage.  Shippers  would  hardly 
R.  A.  647;  Pa.  R.  Co.  v.  Am.  Oil  contemplate  that  in  accepting  such 
Works,  126  Pa.  St.  485.  The  court  in  a  bill  of  lading  the  well  established 
Farrell  V.  Railroad  Co.  say:  "The  sec-  and  cherished  right  of  stoppage 
ond  defense  I'ests  upon  the  following  in  transitu  was  to  be  made  de- 
clause  of  the  bill  of  lading:  'The  pendent  upon  whether  a  distant 
several  carriers  shall  have  a  lien  consignee  was  indebted  to  the  car- 
upon  the  goods  (shipped)  for  all  ar-  rier,  and  the  commercial  world  would 
rearages  of  freight  and  charges  due  doubtless  be  surprised  if  it  were  un- 
by  the  same  owners  or  consignees  on  derstood  that  whenever  such  a  stip- 
other  goods.'  The  counsel  fortliede-  ulation  was  imposed  upon  consignors 
fendant  could  give  us  no  authority  they  were  in  effect  yielding  up  their 
in  support  of  this  defense,  and  none,  lien  for  the  purchase-money  and  sub- 
we  think,  can  be  found,  to  the  effect  stantially  pledging  their  goods  for 
that  such  a  stipulation  should  be  the  payment  of  an  existing  indebted- 
construed  to  take  away  this  'highly  ness  due  their  agent,  the  carrier,  by 
favored  '  and  most  important  rigiit  a  possible  insolvent  vendee." 
-oi  the  vendor  to  preserve  his  lien,  in        ^  Hutchinson  on  Carriers,  sec.  416. 

595 


§  592.]  CARRIEKS.  [PAKT   Y. 

carrier  has  the  possession  and  control  of  the  goods,  and  the 

notice  has  been  given,  his  duty  becomes  twofold :  to  the  vendor 

to  see  that  his  rights  are  protected,  to  the  buyer  that  he  shall 

not  be  unlawfully  treated.     As  we  have  seen,  the  right  is  based 

upon  the  insolvency  of  the  buyer;  if  he  is  solvent,  the  seller 

has  no  right  to  stop  the  goods,  nor  has  the  carrier  any  right  to 

withhold  them  from  delivery.     Under  such  circumstances  if 

the  carrier  is  in  doubt  he  has  the  right  and  it  is  his  duty  to 

insist  upon  full  investigation  of  all  the  facts,  not  only  as  to  the 

question  of  insolvency,  but  any  other  fact  that  may  go  to  the 

right  of  the  seller  to  stop  the  goods,  and  he  may  retain  the 

property  in  his  possession  until  he  is  satisfied.     Should  he  be 

unable  to  determine  the  facts,  and  both  the  vendor  and  vendee 

are  demanding  the  goods  and  threatening  to  bring  actions 

a2:ainst  him  to  recover  them,  the  carrier  would  no  doubt  have 

the  right  to  file  a  bill  of  interpleader  in  an  equity  court  and 

compel  the  parties  to  settle  the  question  between  themselves. 

And  when  it  has  been  so  settled  and  he  has  delivered  the  goods 

in  accordance  with  the  decree  of  the  court,  his  liability  would 

terminate. 

596  « 


PAET  SIXTH 


CARRIERS  OF  PASSENGERS. 


CHAPTER  I. 


THE  RELATION  — WHO  ARE  PASSENGERS. 


593.  The  relation. 

Who  Are  Passengers. 

594.  Definition. 

595.  The  status  fixed  more  or  less 

by  intention. 

596.  Not  essential  that  the  person 

should  be  in  the  vehicle  of 
'the  carrier. 

597.  Express  messengers  and  mail 

agents. 

598.  Mail  agents  and  passengers. 

599.  Drovers. 


g  600.  Workmen  and  employees. 
601.  Carrier  must  receive  the  per- 
son as  a  passenger. 
603.  Persons  violating  reasonable 
regulations. 

603.  Prepayment  of  fare. 

604.  Fraud  on  carrier. 

605.  Termination  of  the  relation. 

606.  Passengers  on  street-cars. 

607.  Reasonable  regulations. 

608.  Must  occupy  usual  place  pro- 

vided by  the  company. 


§  593.  The  relation. —  There  is  an  element  that  necessarily 
enters  into  the  relation  of  carriers  of  passengers,  very  materially 
affecting  both  the  duty  and  the  liability  of  the  carrier,  that  can 
in  no  way  be  an  element  in  any  of  the  relations  thus  far  con- 
sidered. It  is  the  passenger's  intelligence.  In  the  carrying  of 
inanimate  freight  the  carrier  is  privileged  to  store  it  away 
as  he  may  see  fit,  being  careful  to  give  it  safe  and  proper 
carriage,  but  it  is  at  all  times  entirely  under  his  control.  And 
so  in  the  carriage  of  animate  freight,  as  live  stock,  the  carrier 
or  his  servants,  of  necessity,  have  control  of  the  property.  His 
liability,  however,  is  modified,  as  we  have  seen,  to  the  extent 
that  the  damage  might  be  attributable  to  the  inherent  nature 
of  the  property  or  the  life  of  the  freight.  But  where  the  car- 
rier is  engaged  in  the  carrying  of  passengers,  the  modification 
of  his  liability  must  necessarily  be  very  much  greater,  for  the 

597 


§  593.]  CAREIEKS    OF    PASSENGERS.  [PAET    VI. 

subject  of  the  carriage  has  more  than  mere  instinct;  it  has  in- 
telligence, judgment  and  discretion.  And  this  judgment,  intelli- 
gence and  discretion  must,  of  necessity,  lessen  the  control  and 
absolute  sujDervision  of  the  carrier,  for  the  law  necessarily  re- 
quires that  the  passenger  should  exercise  a  reasonable  intelli- 
gence, judgment  and  discretion  in  avoiding  injury;  he  must  use 
his  faculties  to  shun  danger;  he  must  exercise  at  least  ordinary 
care.  And  so  it  follows  that  the  element  which  resulted  in 
that  rule  of  law,  which  has  been  so  often  mentioned,  and  which 
was  demanded  by  public  policy,  that  the  liability  of  the  com- 
mon carrier  of  goods  should  be  that  of  an  insurer,  does  not 
exist  in  the  carrying  of  passengers.  The  liability  is  very  much 
lessened,  and  very  greatly  modified.  He  is  not  an  insurer  of 
the  safety  of  the  passenger,  but  is  held  to  that  high  degree  of 
diligence  which  the  particular  business,  surrounded  by  its  dan- 
gers and  demands  for  skill  and  care,  requires. 

Chief  Justice  Marshall,  in  the  early  case  of  Boyce  v.  Anderson,^ 
which  was  an  action  for  the  loss  of  certain  slaves,  in  discussing 
this  particular  phase  of  the  question  said:  "Can  a  sound  dis- 
tinction be  taken  between  a  human  being  in  whose  person  an- 
other has  an  interest,  and  inanimate  property?  A  slave  has 
volition,  and  has  feelings  which  cannot  be  entirely  disregarded. 
These  properties  cannot  be  overlooked  in  conveying  him  from 
place  to  place.  He  cannot  be  stowed  away  as  a  common  pack- 
age. Not  only  does  humanity  forbid  this  proceeding,  but  it 
might  endanger  his  life  or  health.  Consequently,  this  rigorous 
mode  of  proceeding  cannot  safely  be  adopted  unless  stipulated 
for  by  special  contract.  Being  left  at  liberty,  he  may  escape. 
The  carrier  has  not  and  cannot  have  the  same  absolute  control 
over  him  that  he  has  over  inanimate  matter.  In  the  nature 
of  things,  and  in  his  character,  he  resembles  a  passenger,  not  a 
package  of  goods.  It  would  seem  reasonable,  therefore,  that 
the  responsibility  of  the  carrier  should  be  measured  b}'  the  law 
which  is  applicable  to  passengers  rather  than  by  that  which  is 
applicable  to  the  carriage  of  common  goods." 

As  to  the  distinction  between  the  liability  of  the  carrier  of 
passengers  and  the  liability  of  the  carrier  of  goods,  it  has  been 
said:  "The  latter  has  neither  the  power  of  volition  or  motion 
and  is  completely  under  the  carrier's  control.  The  former  is 
operated  upon  by  moral  causes,  the  latter  orAy  by  physical; 

1 2  Pet.  (U.  S.)  151. 


en.  I.]  THE    EELATION WHO    AKE    PASSENGEKS.       [§§  594,  595. 

and  of  necessity  this  distinction  must  be  kept  in.  view  in.  the 
application  of  the  rule."  ^ 

"Who  are  Passengers.  « 

§  594.  Definition. —  A  passenger  is  one  not  a  servant  of  the 
carrier  who  by  the  consent  of  the  carrier,  express  or  implied, 
is  being  transported  in  the  vehicle  of  the  carrier  from  place  to 
place,  or  who  is  at  a  station  of  the  carrier  with  the  intention 
of  at  once,  or  as  soon  as  possible,  entering  upon  such  relation. 
This  definition  can  be  said  to  comprise  the  general  essentials, 
but  it  would  be  difficult  to  form  a  definition  that  would  include 
every  essential  or  circumstance  that  might  in  particular  cases 
enter  into  the  determination  as  to  who  are  legally  passengers. 
It  is  a  status  or  relation  that  must  be  determined  in  each  par- 
ticular case. 

§  595.  The  status  fixed  more  or  less  by  intention. —  One 
who  is  on  board  the  train  or  vehicle  of  the  carrier,  and  in  the 
place  usually  furnished  for  the  conveyance  of  passengers  and 
is  being  conveyed,  is  legally  presumed  to  be  a  passenger  and 
to  have  complied  with  all  the  essentials  necessary  or  legally 
required  to  constitute  him  a  passenger,  and  should  his  relation 
as  such  be  disputed,  the  burden  of  proof  would  be  upon  the 
carrier  to  show  that  he  was  not  legally  a  passenger.^  But  one 
who  enters  the  waiting-rooms  or  passenger-cars  or  coaches  of 
the  carrier  without  any  intention  of  being  transported  is  not  a 
passenger,  but  a  mere  licensee,  or  a  trespasser,  depending  upon 
the  intention  of  the  person  and  the  privileges  granted  hira. 
There  must  be  an  intention  upon  the  part  of  the  person  to  be- 
come a  passenger  to  be  conveyed  to  some  place  by  the  carrier, 
and  it  is  this  intention  manifested  in  the  direction  of  becoming 
a  passenger  that  largely  fixes  his  status.  While  it  is  true  that 
the  relation  is  a  contractual  relation,  it  is  not  necessary  that 
the  contract  for  carriage  should  be  an  express  contract.  It 
may  be  implied,  and  often  is,  from  slight  circumstances.  The 
consent  of  the  carrier  is  presumed  from  the  fact  that  it  is  his 
legal  duty  to  carry  all  persons  who  apply,  with  certain  excep- 

1  Clark  V.  McDonnell,  4  McCord  (N.        ^  Iseman  v.  South  Carolina,  etc.  Co., 
C),  223;  1  Fetter,  Carriers  of  Passen-    52  S.  C.  5GG. 
gers.  sec.  2;  Hutchinson  on  Carriers, 
sec.  495. 

599 


§  596.]  OAKKIERS    OF    PASSENGERS.  [PART   VI. 

tions;  and  so  it  has  been  held  that  the  contract  need  not  be 
consummated  by  the  payment  of  fare,  or  even  by  entering  the 
vehicle  of  the  carrier,  but  may  depend  largely  upon  the  inten- 
tion of  the  person  at  the  time  he  enters  the  depot,  or  the 
waiting-room,  or  the  car,  or  the  boat,  or  the  vehicle  of  the  car- 
rier.^ 

§  596.  Not  essential  that  the  person  shonld  he  in  the  ve- 
hicle of  the  carrier. —  One  may  become  a  passenger  and  en- 
titled to  all  the  privileges  and  right  to  be  protected  as  such, 
even  before  entering  the  vehicle  of  the  carrier,  provided,  of 
course,  he  has  the  intention  of  being  transported  without  delay 
by  the  carrier.  He  becomes  a  passenger  often  while  waiting 
at  the  station  or  waiting-room  of  the  carrier  for  transporta- 
tion. A  person  who  goes  into  the  station  of  the  carrier  with 
the  hona  fide  intention  of  becoming  a  passenger  is  entitled  to 
the  privileges  and  the  rights  of  a  passenger,  at  least  so  far  as 
the  safety  of  his  person  from  abuse  or  assault  or  defects  in  the 
station,  platforms,  etc.,  is  concerned.-  And  where  one  was  "  in- 
jured by  the  slipping  of  a  gang-plank  while  attempting  to  cross 
it  when  entering  a  steamer  to  take  passage,  he  was  regarded 
as  a  passenger."  ^  The  court  say :  "  It  cannot  be  questioned  that 
a  person  may  become  a  passenger  before  the  transportation  has 
actually  commenced,  and  before  he  has  entered  the  carrier's 
vehicle.  In  the  familiar  case  of  Brlen,  v.  Benneft,*  the  defend- 
ant's omnibus  was  passing  on  its  journey  and  the  plaintiff  made 
a  signal  for  the  driver  to  stop  and  take  him  up.  The  omnibus 
was  accordingly  stopped  for  that  purpose  and  the  door  opened, 
but  just  as  the  plaintiff  was  putting  his  foot  on  the  step  the 
omnibus  was  driven  along  and  the  plaintiff  was  thrown  upon 
his  face  and  injured.  It  was  held  that  the  stopping  of  the 
omnibus  at  the  plaintiff's  request  implied  a  consent  to  take  him 
as  a  passenger,  and  that  thereupon  in  attempting  to  enter  the 
carriage  he  had  the  rights  of  a  passenger.  In  Shatmon  v.  Bos- 
ton, etc.  Co.^  a  person  waiting  in  the  station  for  a  passage  on  a 

1  North  Chicago  Street  Co.  v.  Will-        '  Rogers  v.  Kennebec  S.  Co.,  86  Me. 
iams,  140  III.  275,  53  Am.   &   Eng.  R     261.  25  L.  R.  A.  491. 

Cases.  522.  't  8  Car.  &  P.  724 

2  Gordon  v.  Grand  St.  etc.  R.  Co.,        ^78  Me.  52. 
40  Barb.  546;  2  Wood's  Railway  Law, 

1037,  1045. 

COO 


CH.   I.]  THE    RELATION WHO    ARE    PASSENGERS.  [§  596. 

train  soon  to  depart  was  invited  by  the  ticket  agent  to  sit  in 
an  empty  car  standing  on  the  side  track  while  the  waiting-room 
was  being  cleaned.  It  was  held  that  she  was  entitled  to  the 
same  protection  from  the  company  while  in  this  car  as  if  in  the 
regular  waitifig-room.  In  either  place  the  person  is  a  pas- 
senger in  the  care  of  the  company.'"  And  where  a  person  haxl 
purchased  a  ticket  at  the  station  or  depot  of  defendant  com- 
pany, intending  to  be  a  passenger  on  the  cars  of  the  company, 
and  while  attending  to  the  checking  of  her  baggage  was  in- 
jured by  being  knocked  down  by  persons  engaged  in  scuffling 
in  one  of  the  passage-ways  of  defendant's  station,  it  was  held 
that  the  relation  of  common  carrier  and  passenger  was  estab- 
lished, and  the  compan}^  was  required  to  exercise  reasonable 
care  to  protect  the  passenger  from  injury  in  the  use  of  the 
station  or  depot  for  the  purposes  of  the  journey.  And  if  the 
passenger  uses  the  usual  ways  and  passages  for  the  purpose  of 
obtaining  checks  for  baggage,  and  is  injured  by  any  dangers 
existing  in  or  on  such  ways  and  passages  which  are  known,  or 
ought  to  be  known,  to  the  servants  of  the  company  having 
charge  of  such  station  or  depot,  or  which  could  have  been  rea- 
sonably anticipated  by  them,  and  reasonable  care  has  not  been 
exercised  to  protect  the  passenger  from  such  dangers,  liability 
exists  on  the  part  of  the  defendant  company  to  respond  in  dam- 
ages for  such  injuries.  The  court  say:  "A  railroad  company 
is  a  common  carrier,  and  owes  to  its  passengers  the  duty  of 
guarding  them  from  assaults  and  insults  from  their  fellow-pas- 
sengers and  strangers  when  from  a  high  degree  of  care  the 
same  might  have  been  prevented.^  This  duty  grows  out  of  and 
is  impliedly  a  part  of  the  contract  between  the  carrier  and  the 
passenger.  According  to  the  uniform  tendency  of  adjudica- 
tions, which  we  admit  as  authorities,  the  carrier  owes  to  the 
passenger  the  duty  of  protecting  him  from  violence,  insults  and 
assaults  of  his  fellow-passengers  or  intruders,  and  will  be  held 
responsible  for  its  own  or  its  servants'  neglect  in  this  particu- 
lar, when,  by  the  exercise  of  proper  care,  the  acts  of  violence 

1  Smith  V.  St.  Paul,  etc.  R.  Co.,  33        =*  Putnam  v.  Railroad  Co.,  55  N.  Y. 
Minn.  1,  50  Am.  Rep.  550;  Warren  v.     108;  Hendricks   v.   Railroad  Co.,  44 
Fitch  burg  R.  Co.,  8  Allen,  227,  85  Am.     N.  Y.  Super.  Ct.  8. 
Dec.  700;  Caswell  v.  Boston,  etc.  R. 
■Co.,  98  Mass.  194,  9o  Am.  Dec.  151. 

601 


§  597.]  CABEIEES    OF    PASSENGERS.  [PAET   VI., 

iiiiglit  have  been  foreseen  and  prevented;  and  while  not  re- 
quired to  furnish  watchmen  or  servants  sufficient  to  overcome 
all  force  or  negligence  when  unexpectedly  happening,  yet  it  is 
their  duty  to  provide  suitable  precautions  to  protect  the  pas- 
senger from  assaults  from  any  quarter  at  which  they  might, 
reasonably  be  expected  to  occur  under  the  circumstances  of 
the  case  and  the  conditions  of  the  parties."  ^ 

And  where  a  person  had  purchased  a  ticket  at  the  ticket 
office  of  the  carrier,  with  the  intention  of  becoming  a  passenger 
on  one  of  its  trains,  and  had  passed  through  the  turnstile  pro- 
vided by  the  company  for  that  purpose,  and  not  on  its  depot 
platform,  it  was  held  that  the  relation  of  carrier  and  passenger 
existed  betAveen  the  parties  when  the  purchaser  of  the  ticket 
had  passed  through  the  turnstile.^ 

§  597.  Express  messengers  and  mail  agents. —  Express 
messengers  are  not  servants  of  the  carrier  company,  but  are,, 
as  a  general  rule,  the  servants  of  the  express  company  which 
contracts  with  the  railroad  company  to  carry  its  goods  over 
their  line;  but  in  some  cases  the  railroad  company  has  an 
express  business  of  its  own,  in  wliich  case  the  express  mes- 
senger would  be  the  servant  of  the  company  and  not  a  passen- 
ger. Express  messengers,  as  a  general  rule,  are  passengers 
and  entitled  to  the  privileges  of  passengers,  but  in  some  cases 
the  express  companies  stipulate  in  their  contracts  with  the 
railroad  or  carrier  compan}^  that  the}^  shall  be  exempted  from 
liability,  and  with  such  an  exemption  so  stipulated,  and  under- 
stood b}^  the  messenger  who  takes  the  employment,  accepting 
it  with  full  knowledge  of  the  stipulation,  it  has  been  held  that 
the  express  messenger  is  not  a  passenger  upon  the  carrier  com- 
pany's trains.^    But  where  the  express  messenger  has  no  knowl- 

lExton  V.  Central  R.  Co.,  62  N.  J.  would  hardly  seem  to  be  supported 

Law,  7.  42  Atl.  486.  68  N.  J.  Law,  356.  by  authorities  to  the  full  extent  of 

-  111.  Cent.  R.  Co.  v.  Treat,  75  111.  tlie  statement. 
App.  327.  In  Chicago  &  Grand  ^Iq  Baltimore  &  Ohio  R  Co.  v.. 
Trunk  R.  Co.  v.  Stewart,  77  111.  App.  Voigt,  176  U.  S.  498.  it  was  held 
66,  it  was  held  that  "so  long  as  a  that  an  express  messenger  occupy- 
person  merely  proposing  to  be  carried  ing  an  express  car,  in  charge  of  ex- 
is  at  liberty  to  change  his  mind,  he  press  matter,  in  pursuance  of  a  con- 
is  not  a  passenger  and  for  an  injury  tract  between  the  railroad  company 
which  he  might  sustain  through  the  and  the  express  company,  is  not  a 
negligence  of  the  carrier  he  must  passenger  within  the  meaning  of  thej 
seek  redress    as  a  stranger."'    This  rule  of  public  policj-  which  denies 

603 


CII.   I.]  THE    KELATIOX — ^  WHO    ARE    PASSENGERS.  [§597 

edge  of  the  stipulation  limiting  liability,  and  does  not  himself 
agree  to  such  a  limitation,  he  will  not  be  deprived  of  his  rights 
as  a  passenger  and  will  be  entitled  to  protection  against  the 
negligence  of  tlie  railroad  company  or  its  servants.  And,  as  a 
general  rule,  it  may  be  stated  that  where  there  is  no  such  lim- 
itation by  contract,  express  or  implied,  an  express  messen- 
ger carried  on  a  railroad  train  in  the  exercise  of  his  business 
under  a  contract  between  a  railroad  company  and  an  express 
company  is  a  passenger,  and,  so  far  as  consistent  with  his 
duties,  is  entitled  to  protection  as  such. 

In  Breioer  v.  iV^.  Y.  etc.  Co.^  the  court,  in  considering  the 
question  under  discussion,  say :  "When  he,"  meaning  the  express 
messenger,  "  entered  into  the  service  of  the  express  company 
he  assumed  the  ordinary  hazards  incident  to  that  business  in  his 
relation  to  that  company,  but  there  was  no  presumption  or  im- 
plied understanding  that  the  messenger  took  upon  himself  the 
risks  of  injury  he  might  suffer  from  the  negligence  or  fault  of 
the  defendant;  he  was  in  no  sense  the  employee  of  the  defend- 
ant, nor  could  he,  without  his  consent,  be  subjected  to  the  re- 
sponsibilities of  that  relation.  He  was  lawfully  in  the  car,  having 
charge  of  the  property  and  business  there  of  the  express  com- 
pany, under  its  employment,  and  although  he  paid  no  fare  to 
the  defendant,  was  carried  by  virtue  of  no  contract  made  by 
him  personally  with  the  latter,  and  must  have  understood  that 
he  was  there  pursuant  to  some  arrangement  of  his  employer 

the  validity  of  contracts  limiting  the  the  consequences  of  its  own  or  its 

liability  of  the  carrier  to  a  passenger  servants'  negligence  to  persons  trav- 

for  negligence,  and  cannot  recover  eling  upon  its  trains  as  messengers  or 

of  the  railroad  company  for  injuries  agents  of  an  express  company  to  the 

sustained  in  a  collision,  where  the  same  extent  as  to  other  passengers, 

contract  between  the  companies  ex-  although  no  charge  is  made  for  their 

empts  the  railroad  company  from  fare."    Knowlton  v.  Erie,  etc.  Co.,  19 

such  liability,  while  their  own  con-  Ohio  St.  2G6,  20  Am.  Kep.  395.     But 

tract,  voluntarily  entered  into  as  a  where  the  plaintiff  was  taken  into 

condition   of  employment,  assumes  the  express  car  by  the  express  mes- 

all  such  risks,  and  stipulates  that  he  senger   to  teach  him  the   business 

■will  indemnify  and  hold  his  employer  without  authority  of  the  company, 

harmless  from  all  liability  for  such  the  conductor  supposing  him  to  be 

accident  or  injury,     ^xi  Blair  v.  Rail-  an  agent  of  the  company,  it  was  held 

road  Co.,  66  N.  Y.  313,  23  Am.  Kep.  that  he  was  not  a  passenger.    Union 

55,  it  was  held:  "  Where  there  is  no  Pacific  R.  Co.  v.  Nichols,  8  Kan.  505, 

express  exemption  provided  by  con-  12  Am.  Rep.  475. 
tract,  a  railroad  company  is  liable  for        1 124  N.  Y.  59,  11  L.  R.  A.  483. 

003 


§  597.]  CARRIERS    OF    PASSENGERS.  [PART   VI. 

with  the  defendant,  he  was  not  necessarilj'  by  that  fact  charge- 
able with  notice  of  the  provisions  in  question  of  the  contract. 
Presumptively  he  was  entitled  to  protection  against  personal 
injury  by  the  negligence  of  the  defendant."  ^ 

The  test  seems  to  be,  "Was  the  person  injured  lawfully  upon 
the  train  of  the  carrier  company  under  a  contract,  express  or 
implied,  that  does  not  make  him  an  employee  or  servant  of 
the  company?  And  so  it  has  been  held  that  persons  who  are 
engaged  in  business  for  their  own  profit  and  advantage  on  the 
carrier's  conveyance,  with  the  consent  of  the  carrier,  are  pas- 
sengers, and  entitled  to  protection  as  such  from  the  carrier. 
And  where  the  plaintiff  was  keeping  bar  upon  the  steamboat 
of  defendants  under  an  agreement  by  which  he  was  to  pay 
them  $200  per  month  for  the  privilege  and  use  of  the  bar,  and 
was  also  acting  as  agent  for  an  express  company,  such  com- 
pany paying  defendants  a  monthly  rate  for  carrying  packages 
and  messengers  over  the  route,  defendants'  route  consisting 
partly  of  a  passage  by  steamboat  and  partly  of  a  passage  by 
railway,  and  plaintiff  was  injured  by  defendants'  railway  engine 
when  on  his  way  to  take  charge  of  the  bar  and  the  express 
matter,  it  was  held  that  the  plaintiff  sustained  the  relation  of 
passenger  to  defendants,  and  not  the  relation  of  employee,  the 
court  holding  that  even  as  bar-keeper  plaintiff  was  in  no  sense 
an  employee  of  defendants.-  Therefore  news-agents,  traveling 
upon  the  trains  of  the  company  to  supply  passengers  with 
news  and  paying  to  the  company  a  stipulated  sum,  are  passen- 
gers and  not  employees.  Where  "a  railroad  corporation,  in 
consideration  of  the  payment  to  them  by  a  person  of  a  certain 
sum  of  money  per  year  in  quarterly  instalments,  and  his  agree- 
ment to  suppl}^  the  passengers  on  one  of  their  trains  with  iced 
water,  issued  season  tickets  to  him  quarterly  for  a  passage  on 
any  of  the  regular  trains,  and  permitted  him  to  sell  popped 
corn  on  all  their  trains,  it  was  held  that  his  relation  to  them, 
while  traveling  upon  the  road  under  this  contract,  was  that  of 
a  passenger  and  not  of  a  servant."  The  court  say:  "  Like  other 
season-ticket  holders  he  paid  the  defendants  for  the  privilege  of 

iMo.  Pac.   R.  Co.  V.  Ivey,  71  Tex.     Co.,  24  N.  Y.  222;  Collett  v.  London 
409;  Blair  v.   Erie   R.   Co..  66  N.  Y.     &  N.  W.  R.  Co..  16  Q.  B.  984. 
313;  Knowlton  v.  Western  R.  Corp.,        2  Yeomans  v.  Navigation  Co.,    44 
15  N.  Y.  444;  Smitli  v.  N.  Y.  Cent.  R.     Cal.  71. 

604 


CH.  I.]  THE    KELATION WHO    ARE    PASSENGERS,  [§  698. 

passing  and  repassing  regularly  over  the  road,  and  was  at  lib- 
erty to  go  or  not,  as  he  pleased.  It  appears  to  us  that  the 
service  which  he  rendered  in  furnishing  water  to  passengers 
was  intended  as  a  compensation  for  some  mcrease  in  his  privi- 
leges. The  fact  remains  that  he  was  traveling  on  his  own 
business  and  not  on  that  of  the  defendants."  ^  But  where  the 
newsboy  was  upon  the  train  by  connivance  of  the  conductor,  and 
without  the  consent  or  by  contract  with  the  carrier,  it  was 
held  that  he  did  not  sustain  the  relation  of  a  passenger.^  The 
same  rule,  however,  would  not  apply  as  to  street-car  compa- 
nies. In  their  case  the  newsboy  is  on  and  off  the  car  as  he 
sees  fit;  he  is  not  considered  as  a  passenger,  and  is  at  most  a 
licensee.^ 

§  598.  Mail  agents  are  passengers. —  There  seems  to  be  no 
question  but  that  the  mail  agents  of  the  United  States  travel- 
ing upon  railroad  trains  in  charge  of  mail  cars  and  the  United 
States  mail  are  passengers  and  entitled  to  all  the  protection 
due  to  passengers  upon  the  trains  of  the  company;  and  the 
courts  have  gone  so  far  as  to  hold  that  this  is  true  even  though 
a  mail  agent  is  traveling  upon  a  pass  containing  a  limitation 
or  exemption  from  liability  for  damages  on  account  of  injuries 
occurring  through  the  negligence  of  the  company.  It  of 
course  rests  upon  that  principle  which  we  have  already  stated, 
that,  where  a  person  is  traveling  under  a  contract  which  does 
not  make  him  an  employee  or  servant  of  the  company,  he  will 
be  entitled  to  that  care  and  diligence  which  is  due  to  one  who 
is  strictly  a  passenger. 

In  Seylolt  v.  New  York  R.  Co.,'^  where  "  a  mail  agent  was 
killed  by  an  accident  on  defendant's  railroad  while  riding  upon 
a  pass  issued  for  his  use  by  defendant,  upon  which  was  an  in- 

1  Com.  V.  Vermont,  etc.  R.  Co.,  108  Libby  v.  Railroad  Co.,  85  Me.  34.  It 
Mass.  7,  11  Am.  Rep.  301.  is  not    denied  that  the    defendant 

2  Duff  V.  Railroad  Co.,  91  Pa.  St.  company  owed  the  same  degree  of 
458,  30  Am.  Rep.  675.  care  to  this  plaintiff  (the  mail  agent) 

*  Philadelphia  Traction  Co.  v.  Or-  while  riding  in  the  passenger  car 'in 
bann,  119  Pa.  St.  37,  12  Atl.  816;  chargeof  the  mails  that  it  did  the  pas- 
North  Chicago  Street  Car  Co.  v.  senger  upon  the  train.  Baltimore  & 
Thurston,  43  111.  App.  587;  Black-  Ohio  R.  Co.  v.  State,  72  Md.  36,  6  L. 
more  v.  Railroad  Co.,  38  N.  S.  Q.  B.  R.  A.  700,  18  Atl.  1107;  Norfolk,  etc. 
172.  R.  Co.  V.  Shott,  92  Va.  34;  Gleason 

« 95  N.  Y.  562, 49  Am.  Rep.  75;  CJulf,  v.  Railroad  Co.,  140  U.  S.  435. 
etc.   R.  Co.  V.  Wilson,  79  Tex.  371; 

005 


§  590.]  OAKKIERS    OF    PASSENGERS.  [PAET   VI. 

dorseraent  by  which  it  was  stipulated  that  the  defendant  should 
be  exempt  from  liability  for  damages  on  account  of  injuries 
occurring  through  its  negligence,"  it  was  held  that  the  stipula- 
tion exempting  the  defendant  from  liability  was  "  unauthor- 
ized and  void,"  and  that  although  "  the  decedent  received  the 
pass,  and  was  chargeable  with  the  knowledge  of  its  contents, 
it  did  not  constitute  a  contract  between  him  and  defendant;" 
that  the  defendant  was  under  "  the  absolute  duty  of  carrying 
the  agent  in  charge  of  the  mails  and  had  no  right  to  impose 
the  condition.  Therefore,  if  the  exemption  clause  was  to  be 
considered  as  a  contract,  it  was  void  for  want  of  considera- 
tion." ^ 

§  599.  Drovers. —  Persons  in  charge  of  live  stock  being 
shipped  over  the  carrier's  road,  and  riding  upon  a  free  pass  is- 
sued by  the  railroad  company  on  account  of  the  shipment  of  the 
stock,  are  passengers.  In  Cleveland,  etc.  R.  Co.  v.  Curran^-  the 
corajoany  "in  making  a  contract  for  shipment  of  live  stock  at 
a  specified  rate,  without  any  additional  consideration,  delivered 
to  the  shipper  a  drover's  pass  entitling  him  to  go  with  his  stock 
and  to  return  on  a  passenger  train.  In  the  written  agreement 
for  transporting  the  stock,  the  holder  of  the  ticket  was  referred 
to  as  riding  free  to  take  charge  of  the  stock.  On  the  pass  was 
an  indorsement  that  it  was  a  free  ticket,  and  that  the  holder 
assumed  all  risk  of  accident,  and  agreed  that  the  company 
should  not  be  liable  under  any  circumstances,  whether  of  negli- 
gence by  the  company's  agents  or  otherwise,  for  any  injury  to 
his  person  or  property,  and  that  he  would  not  consider  the 

1  In  Cleveland,  etc.  R.  Co.  v.  tified  the  conductor  of  his  presence 
Ketcham,  133  Ind.  346,  19  L.  R.  A.  on  the  train,  and  the  conductor  has 
339,  it  was  held  that  "a  railway  not  learned  that  he  is  on  the  train." 
postal  clerk  in  the  employment  of  And  in  Ohio.  etc.  R.  Co.  v.  Voigt.  122 
the  United  States,  who  is  entitled  to  Ind.  288,  it  was  held  that  '"the  rail- 
ride  free  while  on  duty,  or  when  road  company  is  prima  facie  liable 
traveling  to  and  from  duty,  is  a  pas-  for  negligence  in  causing  the  death  of 
sejiger  entitled  to  the  same  care  and  a  postal  agent  in  charge  of  the  mails 
protection  as  other  passengers  while  on  its  trains  where  the  mail  car  was 
returning  home  from  duty,  although  derailed."  Gleason  v.  Va.  etc.  R.  Co., 
he  is  in  the  postal  car  assisting  in  104  U.  S.  434;  Houston,  etc.  R  Co.  v. 
handling  the  mail  by  request  of  the  Hampton,  64  Tex.  427;  McGoffin  v. 
clerk  in  charge  and  has  not  paid  or  Mo.  Pac.  R.  Co.,  102  Mo.  540. 
offered  to  pay  fare,  or  exhibited  his  ^  19  Ohio  St.  1. 
commission   as  postal  clerk,  or  no- 

606 


-CII.  I.]  THE    RELATION WHO    ARE    PASSENGERS.  [§  599. 

company  as  common  carriers,  or  liable  as  such."  The  court 
held  "  that  the  pass  and  the  agreement  for  transporting  the 
«tock  constituted  together  a  single  contract,  and  that  the  holder, 
both  while  going  with  his  stock  and  returning,  was  not  a  gra- 
tuitous but  a  paying  passenger.  That  the  stipulation  in  the 
contract  exempting  the  company  from  liability  for  negligence 
constituted  no  defense  to  an  action  brought  by  the  shipper  for 
personal  injury  caused  by  the  negligence  of  the  servants  of  the 
company  in  the  management  of  its  trains,  such  stipulation 
being  against  the  policy  of  the  law,  and  therefore  void."  The 
court  in  the  opinion  say:  "  It  is  true  that  common  carriers  are 
not  insurers  of  the  safety  of  passengers  as  they  are  of  goods 
which  they  undertake  to  carry;  but  the  principle  of  law  which 
forbids  their  being  allowed  to  exempt  themselves  from  liability 
for  the  consequences  of  their  negligence  in  respect  to  goods 
applies  with  still  greater  force  in  the  case  of  passengers.  The 
common  law  has  a  peculiar  regard  for  human  life;  and  for 
this  reason  exacts  a  greater  degree  of  care  in  respect  to  it  than 
in  relation  to  any  matter  of  mere  property.  Carriers  of  the 
class  of  the  plaintiff  in  error  are  creatures  of  legislation,  and 
derive  all  their  powers  and  privileges  by  grant  from  the  public. 
They  are  created  to  effect  public  purposes,  as  well  as  to  sub- 
serve their  own  interest.  They  are  intended,  by  the  law  of 
their  creation,  to  afford  increased  facilities  to  the  public  for 
the  carriage  of  persons  and  property,  and,  in  performing  this 
office,  they  assume  the  character  of  public  agents,  and  im- 
pliedly undertake  to  employ  in  their  business  the  necessarj^ 
degree  of  skill  and  care.  In  Pliiladelphia  &  R.  R.  Co.  v.  Derhj  ^ 
it  was  laid  down  that, '  when  carriers  undertake  to  convey  per- 
sons by  the  powerful  but  dangerous  agency  of  steam,  public 
policy  and  safety  require  that  they  should  be  held  to  the  great- 
est possible  care  and  diligence.  And  whether  the  considera- 
tion for  such  transportation  be  pecuniary  or  otherwise,  the 
personal  safety  of  passengers  should  not  be  left  to  the  sport  of 

1 14  How.  486;  Welch  v.  Pac.  etc.  R.  471, 17  Am.  Rep.  719;  Illinois  Cent.  R. 
Co.,  10  Ohio  St.  65:  Chicago,  etc.  R.  Co.  Co.  v.  Beebe,  69  111.  App.  363;  Law- 
V.  Winters,  175  111.  293;  Maslin  v.  B.  &  son  v.  Railway  Co..  64  Wis.  447;  Lake 
'O.  Co.,  14  W.  Va.  180,  35  Am.  Rep.  Shore,  etc.  R.  Co.  v.  Brown,  123  111. 
.748;  Ohio,  etc.  Co.  v.  Selby,  47  Ind.     163. 

607 


§  CUO.]  CAKEIEES    OF    PASSENGEES.  [PAET    VI> 

chance  or  the  negligence  of  careless  agents.  Any  negligence 
in  such  cases  may  well  deserve  the  epithet  of  gross.'  " 

§  600.  ^Vorknien  and  employees. —  It  seems  to  be  well  set- 
tled that  if  an  employee  is  traveling  in  accordance  with  his 
employment  with  the  company  he  will  be  regarded  as  an  em- 
ployee. A  pertinent  question  would  be,  Was  he  at  the  time  of 
the  injury  on  duty  for  the  company  as  their  servant  or  em- 
ployee ?  If  so,  he  is  not  a  passenger  but  a  servant,  and  is  pre- 
sumed to  assume  all  the  risks  ordinarily  incident  to  his  em- 
ployment, and  should  the  injury  result  from  the  negligence  of 
the  servants  of  the  carrier  company,  that  other  rule  would  ob- 
tain, that  the  company  would  not  be  liable  for  the  injury  of 
one  of  its  servants  caused  by  the  negligence  of  his  fellow-serv- 
ants. So,  where  one  was  riding  upon  a  train  for  the  purpose 
of  cleaning  snow  from  the  track  and  was  injured  by  the  over- 
turning of  the  car  in  which  he  rode  by  reason  of  an  unsuccess- 
ful attempt  of  the  conductor  to  remove  a  snow  bank  from  the 
track  by  means  of  the  snow-plough  alone  aided  by  the  momen- 
tum of  the  train,  it  was  held  "that  a  recovery  by  the  plaintiff 
was  precluded  by  the  facts  that  such  overturning  of  his  car 
was  one  of  the  perils  of  the  business  which  he  assumed,  and 
that  the  conductor  and  others,  whose  negligence  is  alleged, 
were  fellow-servants  in  the  same  employment."  ^ 

A  very  common  and  ordinary  example  demonstrating  this 
rule  is  found  where  persons  are  employed  in  loading  and  un- 
loading gravel  trains  and  riding  back  and  forth  from  the  gravel 
pits  to  the  place  of  depositing  the  load;  such  persons  are  held 
to  be  in  the  employment  of  the  carrier  and  are  not  passengers.^ 
But  the  rule  as  to  the  liability  for  the  injury  of  employees  or 
workmen  who  are  being  transported  to  and  from  their  work 
by  the  carrier  company,  riding  upon  a  pass,  or  by  consent  of 
the  conductor  of  trains,  or  persons  having  charge  of  the  car- 
rier's vehicles,  is  not  so  well  settled.  There  seems  to  be  some 
conflict  among  the  cases  upon  this  question.  A  large  number 
of  cases  hold  that  such  persons  while  being  transported  are  to 

1  Howland  v,  Milwaukee  R.  Co.,  54    119  Mass.  412:  Kumler  v.  Junction  R. 
Wis.  226;  Sullivan  v.  India  Mfg.  Co.,     Co.,  83  Ohio  St.  150. 
113  Mass.  396;  Ladd  v.  Railroad  Co.,        -iOhio  &  M.  R  Co.  v.  Tyndall,  13 

Ind.  366,  74  Am.  Dec.  259. 
608 


en.  I.]  THE    RELATION WHO    AKE    PASSENGERS.  [§  COO. 

be  considered  as  employees  of  the  company,  while  others  con- 
tend that  they  are  entitled  to  be  treated  as  passengers.  An  at- 
tempt is  made  to  lay  down  a  rule  in  "which  the  carrier  is  to  be 
held  liable  in  such  like  cases  by  the  court.  In  the  case  of 
Hutcldnson  v.  YorJc,  etc.  i?.  Co.,^  the  court,  after  holding- 
that  the  carrier  was  not  liable  in  the  particular  case  because 
decedent  was  engaged  in  the  discharge  of  his  duties  to  the 
carrier,  say:  "It  may,  however,  be  proper  with  reference  to 
this  point  to  add  that  we  do  not  think  a  master  is  exempt  from 
responsibility  to  his  servant  for  an  injtiry  occasioned  to  him 
hy  the  act  of  another  servant  where  the  servant  injured  was 
not,  at  the  time  of  the  injury,  acting  in  the  service  of  his  master. 
In  such  a  case  a  servant  is  substantially  a  stranger  and  entitled 
to  all  the  privileges  he  would  have  had  if  he  had  not  been  a 
servant."  And  it  would  seem  that  this  rule  would  be  a  safe 
one  to  follow  in  this  class  of  cases.  Without  question  the  em- 
ployee is  not  a  passenger  while  engaged  in  the  duties  of  his 
employment,  but  when  these  duties  have  ceased  and  he  is  be- 
ing transported  by  the  carrier  by  reason  of  a  contract  which 
gives  to  the  carrier  compensation,  or  by  consent  of  the  carrier 
because  of  his  relations  to  the  person,  and  such  transportation 
is  not  in  accordance  or  along  the  duty  of  his  employment,  it 
would  seem  that  in  such  cases  the  employee  would  be  a  pas- 
senger. As  was  stated  by  the  court  in  the  case  of  State  v. 
Maryland  R.  Co.^  in  discussing  the  conflict  of  authorities  upon 
this  subject:  "In  whatever  else  they  may  differ,  these  cases 
all  agree  upon  one  principle,  and  that  is  this:  if  the  plaintiff  is 
not  at  the  time  of  the  accident  engaged  in  the  actual  service 
of  the  company,  or  in  some  way  connected  with  such  service, 
the  company  is  liable  for  the  negligence  of  its  employees;  that 
because  he  w^orks  daily  for  the  company  and  is  styled  its  em- 
ployee, the  company  is  not  exempt  from  liability  for  the  neg- 
ligence of  its  other  servants  at  all  times  and  under  all  circum- 
stances;  that  the  exemption  depends  upon  the  actual  service 
within  the  scope  of  his  employment." 

So  a  brakeman  on  a  train  which  ran  daily  except  Sundays, 
who  was  employed  and  paid  by  the  day,  but  was  not  paid  on  Sun- 
day unless  required  for  duty  on  that  day,  after  his  day's  work 
was  ended  on  Saturday  evening,  by  the  permission  of  the  con- 

16  Eng.  Ry.  &  Canal  Cas.  580.  '^  63  Md,  433,  441. 

39  609 


§  601,]  CARRIERS    OF    PASSENGERS.  [PART   TI. 

ductor,  was  returning  home  to  spend  Sunday  and  was  permit- 
ted to  travel  free,  and  while  riding  in  a  caboose  car  of  a  freight 
train  of  the  company  was  killed  by  a  collision  with  another 
train,  caused  by  the  negligence  of  the  employees  of  the  com- 
pany, in  an  action  for  damages  it  was  held  that  he  was  a  pas- 
senger and  entitled  to  all  the  privileges  he  would  have  had  if 
he  had  not  been  an  emjDloyee ;  that  the  fact  that  he  was  rid- 
ing on  the  cars  upon  an  employee's  pass  did  not  alter  the  case. 
And  where  an  employee  who  was  employed  to  work  upon  a 
bridge  of  a  railroad  company,  where  his  contract  entitled 
him  to  free  transportation  from  his  home  to  the  place  where 
his  work  was  to  be  performed,  and  from  that  place  back  to  his 
home  at  night  when  his  work  was  over,  was  killed  by  a  col- 
lision with  another  train  caused  by  the  negligence  of  defend- 
ant company,  in  an  action  against  the  company  it  was  held 
that  the  employee  was  a  passenger  while  riding  upon  the  train 
to  his  home,  and  entitled  to  protection  as  such.^ 

§  601.  Carrier  must  receive  the  person  as  a  passenger. — 
While,  as  we  have  seen,  there  must  be  an  intention  on  the  part 
of  the  passenger  to  become  a  passenger  upon  the  carrier's  ve- 
hicle, there  must  also  be  an  express  or  implied  receiving  of  the 
person  as  a  passenger  by  the  carrier.  There  need,  of  course, 
be  no  formal  receiving  or  accepting  of  a  person  as  a  passenger 
upon  the  train  or  vehicle,  but  there  must  be  such  circumstances 
as  indicate  that  the  passenger  is  received,  and  that  the  carrier 
expects  and  understands  that  persons  occupying  or  taking  ad- 
vantage of  the  particular  situation  are  passengers.  For  ex- 
ample, the  carrier  company  holds  out  to  the  public  that  they 
will  receive  and  carry  all  passengers  who  may  apply  to  them, 
and  to  that  end  they  furnish  coaches,  vehicles  and  cars  at  the 
termini  of  their  routes,  and  thus  invite  the  public  to  patronize 
them,  and  become  passengers  over  their  line,  and  persons  who 
accept  this  invitation  are  presumably  accepted  by  the  carrier. 
There  are,  however,  certain  reciprocal  duties  incumbent  upon 

1  McNulty  v.?'Pa.  R.  Co.,  182  Pa.  St.  where  the  several  cases  are  collected 

479,  38  L.  R.  A.  376;  Doyle  v.  Rail-  and  stated.     For  full  statement  of 

road  Co.,  162  Mass.  66;  McDaniels  v.  rule  see  Transit^  Co.  v.  Venable,  105 

Railroad  Co.,  90  Ala.  64;  Tex.  &  Pac.  Tenn.  460,  51  L.  R.  A.  886,  and  cases 

R.  Co.  V.  Smith,  67  Fed.  524,  31  L.  R.  cited. 
A.  321.    See  notes  to  31  L.  R.  A.  321, 

610 


CH.  I.]  THE    RELATION WHO    ARE    PASSENGERS.  [§  601. 

the  person  who  seeks  to  become  a  passenger  and  avail  himself 
of  the  privileges  and  protection  of  a  passenger;  he  must  present 
himself  for  carriage  at  the  place  appointed  by  the  carrier  for 
receiving  its  patrons,  and  in  the  usual  manner;  he  must  occupy 
the  usual  place  upon  the  carrier's  vehicle,  train  or  boat;  that 
is,  the  place  furnished  for  and  usually  occupied  by  passengers. 
This  has  been  recognized  by  the  courts,  and  it  has  been  held 
that  where  one  clandestinely  obtains  passage  by  hiding  him- 
self away  in  the  carrier's  boat,  or  occupies  an  unusual  place 
on  the  carrier's  train,  he  is  not  a  passenger  but  a  trespasser 
and  not  entitled  to  the  protection  due  to  a  passenger.  And 
where  the  holder  of  a  free  pass  on  a  railroad  goes  on  at 
the  front  platform  of  the  baggage-car  next  to  the  tender  when 
the  train  is  in  motion,  and  after  it  has  left  the  depot,  and  then 
tries  to  open  the  baggage-car  door,  although  he  is  there  with 
the  knowledge  of  the  conductor  that  some  one  had  boarded 
his  train,  such  person  is  not  a  passenger.  The  court  say  in 
such  case,  "  it  was  also  necessary  for  the  plaintiff  to  prove  that 
the  relation  of  passenger  and  carrier  existed  between  the  de- 
ceased and  defendant.  This  relation,  which  was  claimed  to 
exist,  is  a  contract  relation.  A  railroad  company  holds  itself 
out  as  ready  to  receive  and  carry,  and  is  bound  to  receive  and 
carry,  all  passengers  who  offer  themselves  as  such  at  the  places 
provided  for  taking  passage  on  its  trains,  and  who  takes  such 
passage  in  the  cars  provided  for  passengers.  When  one  so  pre- 
sents himself,  the  contract  relation  under  which  he  acquires  the 
rights  of  a  passenger  may  be  either  express  or  implied  from  the 
circumstances.  If  a  person  goes  upon  cars  provided  by  the 
railroad  company  for  the  transportation  of  passengers  with 
the  purpose  of  carriage  as  a  passenger,  with  the  consent,  express 
or  implied,  of  the  railroad  company,  he  is  presumptively  a  pas- 
senger. Both  parties  must  enter  into  and  be  bound  by  the 
contract.  The  passenger  may  do  this  by  putting  himself  into 
the  care  of  the  railroad  company,  to  be  transported,  and  the 
company  does  it  by  expressly  or  impliedly  receiving  him  and 
accepting  him  as  a  passenger.  The  acceptance  of  the  passen- 
ger need  not  be  direct  or  express,  but  there  must  be  something 
from  which  it  may  be  fairly  implied.  One  does  not  become  a 
passenger  until  he  has  put  himself  in  charge  of  the  carrier, 

611 


602.] 


CAEKIERS    OF   PASSENGERS. 


[part  VI. 


and  has  been  expressly  or  impliedly  received  as  such  by  the 
carrier."  ^ 

§  602.  Persons  violating  reasonable  regnlations. —  Car- 
riers of  passengers  may  make  reasonable  regulations  as  to  the 
conduct  of  their  business,  and  persons  violating  such  regula- 
tions by  way  of  obtaining  passage  upon  their  trains  or  vehicles, 
as  a  general  rule,  will  not  be  considered  as  passengers.  As,  for 
example,  railroads  generally  do  not  permit  persons  to  ride 
upon  the  engine,  in  express-cars,  mail-cars,  baggage-cars  or  in 
unusual  places,  or  upon  their  freight  trains,  without  their  con- 
sent; and  so,  when  persons  violate  these  regulations  and  obtain 
passage  without  the  consent  of  the  carrier,  they  are  not  pas- 
sengers;^ nor  are  they  even  licensees,  but  are  trespassers,  and 
may  be  ejected.  And  where  a  person  ran  to  catch  the  train 
as  it  was  starting  from  the  station,  and  was  not  seen  by  any 
of  the  trainmen,  and,  without  negligence  on  their  part,  was 
injured  while  attempting  to  board  the  train  while  moving,  it 
was  held  that  he  was  not  a  passenger  and  the  company  was 
not  liable.^  Where  a  person  wrongfully  boards  a  freight  train 
which  is  not  used  for  carrying  passengers  and  remains  on  it 


1 UL  Cent.  R.  Co.  v.  O'Keefe,  168  111. 
115,  39  L.  R.  A.  148;  Bricker  v.  Phil- 
adelphia &  R.  Co.,  132  Pa.  St.  1: 
Webster  v.  Fitchburg  R.  Co.,  161 
Mass.  298,  24  L.  R.  A.  521;  4  Elliott, 
Railroads,  sec.  1581. 

2  Thomas  v.  Railroad  Co.,  72  Mich, 
355;  Arnold  v.  Railroad  Co.,  83  III. 
273;  Hutch,  on  Carriers,  538a,-  Eaton 
V.  Del.,  L.  &  W.  R.  Co.,  57  N,  Y,  382. 
Railroad  companies  have  the  right 
to  make  a  complete  separation  be- 
tween their  freight  and  passenger 
business.  Where  this  is  done,  the 
conductor  of  a  freight  train  has 
such  general  authority  only  as  is  in- 
cidental to  the  business  of  moving 
freight,  and  no  power  whatever  as 
to  the  transportation  of  passengers; 
and  notice  of  this  limited  authority 
will  be  implied  from  the  nature  and 
apparent  division  of  the  business. 
When  a  person  not  accepted  as  a 
passenger,  and  without  the  knowl- 
edge of  the  railroad  company's  em- 


ployees, is  In  a  car  not  provided  for 

passengers,  but  exclusively  devoted 
to  the  railway  mail  service,  and  with 
no  right  to  remain  there,  the  com- 
pany is  not  liable  for  injuries  re- 
ceived by  him  in  a  collision.  Bricker 
V.  Railroad  Co.,  132  Pa.  St.  1.  In 
Files  V.  Boston,  etc.  R.  Co.,  149  Mass. 
204,  it  was  held  that  "the  person 
who  attempts  to  get  into  the  cab  of 
a  locomotive  engine  attached  to  a 
freight  train  on  a  railroad  used  ex- 
clusively for  the  transportation  of 
freight,  to  ride  for  his  own  conven- 
ience by  invitation  of  the  conductor 
of  the  train,  does  not  acquire  the 
rights  of  a  passenger  and  cannot  re- 
cover for  personal  injuries  occa- 
sioned to  him  by  the  starting  of  the 
engine,  even  if  he  has  previously 
ridden  tiiereou  by  a  similar  invita- 
tion, and  has  seen  others,  including 
railroad  employees,  do  so." 

3  Jones  V.  Boston,  etc.  R  Co.,  163 
Mass.  245. 
613 


CH.  I.]  THE    RELATION  —  WHO   ABE   PASSENGEES.  [§  602. 

without  the  consent  of  the  servants  of  the  company  in  charge 
of  the  train,  he  cannot  claim  the  right  of  a  passenger;  and  if 
injured  while  thus  being  carried,  the  company  is  not  liable  un- 
less the  injury  Avas  caused  by  gross  or  wilful  neglect  by  the 
servants  of  the  company.^ 

As  to  whether  one  can  be  deemed  a  passenger  who  gets 
upon  the  company's  trains  without  consent  or  permit  depends 
somewhat  upon  the  custom  of  the  carrier  as  to  carrying 
passengers  upon  such  train,  as  well  as  upon  their  regulations 
forbidding  the  carriage  of  passengers.  The  fact  that  the  con- 
ductor of  a  freight  train  had  permitted  persons  to  ride  on  two 
or  three  occasions  and  had  collected  fare  would  not  be  suffi- 
cient to  show  that  the  train  was  a  passenger  train.  But  a 
freight  conductor's  authority  to  carry  passengers  might  be  im- 
plied from  a  long  course  of  business  of  the  company  in  ming- 
ling its  freight  and  passenger  business,  and  so  if  for  a  long  time 
it  has  been  the  rule  and  practice  of  the  company  to  separate 
their  freight  and  passenger  business,  and  carry  passengers  only 
upon  their  passenger  trains,  this  custom  and  practice  would  go 
very  far  toward  determining  the  question  as  to  whether  one 
who  had  boarded  such  a  train  would  be  a  passenger.-  But 
where  one  is  received  upon  a  freight  train,  or  is  permitted  to 
ride  in  an  unusual  place  upon  the  passenger  train  or  vehicle  of  the 
carrier  by  permission  of  those  in  charge,  although  he  is  violat- 
ing the  reasonable  regulations  of  the  company,  and  although 
he,  by  reason  of  the  manner  of  boarding  the  train  or  the  ve- 
hicle or  continuing  to  ride  in  it,  is  a  trespasser,  nevertheless 
the  carrier  owes  to  such  person,  when  discovered,  a  protection 

1  Louisville  &  N.  R.  R.  Co.  v.  Moss,  trains  such  person  is,  it  is  essential 

13  Ky.  Law,  684.  that  such  person  should  he  rightfully 

2 Lucas  V.  Milwaukee  R.  Co.,  33  Wis.  on  such  train,  or  should  be  thereon 

41;  Cleveland,  etc.  R.  Co.  v.  Best,  169  with  theknowledgeor  consent  of  the 

111.  801.     Where  "a  person  was  rid-  conductor."  Woolsey  v.  Chicago,  etc. 

ing  upon  a  locomotive  engine  of  a  R.  Co.,  39  Neb.  798,  25  L.  R.  A.  79; 

freight  train  by  agreement  with  the  Louisville,  etc.  R.  Co.  v.  Hailey,  94 

fireman  of  such  engine  to  shovel  coal  Tenn.  383,  27  L.  R.  A.  549;  McVeety 

for  the  privilege  of  riding  (such  per-  v.  St.  Paul,  etc.  R.  Co.,  45  Minn.  268, 

son  being  on  such  train  without  the  11  L.  R.  A.  174;  McNamara  v.  Great 

knowledge  or   consent   of  the   con-  Northern,  etc.  R.  Co.,  61  Minn.  2!)6; 

ductor  in  charge  thereof),  held,  not  a  Can.   Pac.   R.   Co.  v.  Johnston,  Mon- 

passenger,  and  that  to  constitute  one  treal  Rep.,  6  Q.  B.  213;  Powers  v.  Bos- 

a  passenger  of  the  carrier  on  whose  ton,  etc.  R.  Co.,  153  Mass.  198. 

613 


§§  603-605.]  CAKKIEES    OF    PASSENGERS.  [PAET   VI. 

from  injur}'-  to  the  extent  at  least  of  ordinary  care.  It  is  that 
care  and  protection  which  humanity  would  demand  of  the  car- 
rier.^ 

§  603.  Prepayment  of  fare. —  Prepayment  of  fare  is  not  a 
requisite  to  becoming  a  passenger.  "  It  is  universally  agreed 
that  the  payment  of  the  fare,  or  price  of  the  carriage,  is  not 
necessary  to  give  rise  to  the  liability.  The  carrier  may  de- 
mand its  prepayment,  if  he  chooses  to  do  so,  but  if  he  permits 
the  passenger  to  take  his  seat  or  to  enter  his  vehicle  as  a  pas- 
senger, without  such  requirement,  the  obligation  to  pay  will 
stand  for  the  actual  payment,  for  the  purpose  of  giving  effect 
to  the  contract  with  all  its  obligations  and  duties.  Taking  his 
place  in  the  carriers  conveyance,  with  the  intention  of  being 
carried,  creates  an  implied  agreement  upon  the  part  of  the 
passenger  to  pay  when  called  upon,  and  puts  him  under  a  lia- 
bility to  the  carrier,  from  which  at  once  spring  the  reciprocal 
duty  and  responsibility  of  the  carrier."  ^ 

§  604.  Same  subject  —  Fraud  on  carrier. —  But  if  the  per- 
son who  is  seeking  transportation  undertakes  to  defraud  the 
carrier  and  evade  the  payment  of  fare,  he  is  not  a  passenger, 
nor  even  a  licensee,  but  a  trespasser.  And  where  a  passenger 
boards  a  train  with  the  deliberate  purpose  not  to  pay  his  fare 
and  adheres  to  that  purpose,  or  being  on  the  train,  and  having 
money  with  him  with  which  he  could  pay  his  fare,  falsely  and 
fraudulently  represents  that  he  is  without  means  to  pay,  and 
in  this  way,  and  by  means  of  such  false  representations,  induces 
the  conductor  to  permit  him  to  remain  on  the  train  without 
paying  his  fare,  it  was  held  that  the  relation  of  carrier  and 
passenger  and  the  obligations  resulting  from  that  relation 
were  not  established.^ 

§605.  Termination  of  the  relation. —  The  relation  of  pas- 
seno^er  and  carrier  havino^  been  once  established  is  not  termi- 
nated  when  the  passenger  alights  from  the  vehicle  of  the  rail- 

1  Whitehead  v.  St.  Louis,  etc.  Co.,  App.  533,  537;  Chattanooga,  etc.  R. 
99  Mo.  263,  6  L.  R.  A.  409;  Waguer  v.     Co.  v.  Huggins,  89  Ga.  494,  503. 

Mo.  Pac.  R.  Co.,  97  Mo.  512,  3  L.  R.  A.  3  Condran  v.  Chicago,  etc.  R  Co.,  14 

156;  Chicago,  etc.  R.  Co.  v.  Frazer,  55  C.  C.  A.  (U.  S.)  506,  67  Fed.  522.  cit- 

Kan.  582.  ing  Railroad  Co.  v.  Brooks,  81  111. 

2  Hutchinson  on  Carriers,  sec.  565;  245;  Railroad  Co.  v.  Melilsack,  181 
Cleveland,  etc.  R  Co.  v.  Best,  68  111.  111.  64;  Way  v.  Railroad  Co.,  64  Iowa, 

48,  and  other  cases. 
614 


CH.  I.]      '  THE    RELATION  —  AVHO    ARE   PASSENGERS.  [§  (J06. 

way  company,  but  continues  while  on  the  premises  of  the 
carrier  company  for  a  period  of  time  reasonably  necessary 
to  enable  him  to  leave  the  premises,  and  during  this  time  he  is 
entitled  to  the  protection  of  the  company's  agents  and  serv- 
ants, even  from  the  assaults  of  third  persons.^  And  so  it  is 
held  that  the  relation  of  carrier  and  passenger  exists  when  a 
passenger  is  obliged  to  alight  from  a  car  to  go  to  another  to 
be  carried  by  the  carrier  to  his  destination .^  And  where  a 
passenger  on  a  railroad  train  "  alighted  by  direction  of  the  com- 
pany, or  by  its  implied  invitation,  at  a  place  where  in  order  to 
leave  the  premises  of  the  company  it  was  necessary  to  cross 
intervening  tracks,  it  was  held  that  he  remained  a  passenger 
until  he  had  crossed  such  tracks,  provided  he  used  the  means 
of  egress  which  the  company  had  provided,  or  which  were 
customarily  used  with  the  knowledge  of  the  company  and  its 
consent; "  and  in  such  case  that  "  there  was  an  implied  agree- 
ment that  the  trains  of  the  company  should  not  be  so  oper- 
ated as  to  make  the  exit  unnecessarily  dangerous,"  provided 
such  passenger  exercised  reasonable  care  and  prudence  in  avoid- 
ing danger;  that  is,  such  care  and  prudence  as  under  all  the 
circumstances  a  reasonably  prudent  person  would  exercise.'' 

§  606.  Passengers  on  street-cars. —  In  determining  who 
are  passengers  upon  the  street-cars,  we  are  to  apply  the  same 
principles  already  mentioned  so  far  as  they  are  applicable. 
Street-car  companies,  unlike  railroad  companies,  do  not  con- 
struct and  maintain  depots  and  waiting-rooms  for  their  pas- 
sengers, nor  do  they,  except  in  cases  of  suburban  lines,  main- 
tain ticket  offices,  but  passengers  are  expected  to  board  the 
cars  from  the  street  wherever  they  stop,  and  to  pay  their  fare 
to  the  conductor  or  person  in  charge.  Once  on  board  the  car 
and  in  the  place  for  passengers  with  the  intention  of  being  car- 
ried, and  complying  with  the  reasonable  regulations  of  the 
company,  the  person  is  presumed  to  be,  and  is,  a  passenger  dur- 
ing the  time  he  is  thus  being  conve3^ed.  And  so  where  a  news- 
boy boarded  a  street-car  without  signaling  it  to  stop,  for  the 

1  Tex.  &  P.  Ry.  Co.  v.  Dick,  63  S.  W.  Railway  Co.  v.  Coggins,  33  C.  C.  A. 
895.  1,  88  Fed.  455;  Railway  Co.  v.  Low- 

2  Chicago  &  A.  Ry.  Co.  v.  Winters,  ell,  151   U.   S.   209;  Warner  v.  Rail- 
175  111.  293.  51  N.  E.  901.  way  Co.,  168  U.   S.  339;  Graven  v. 

3  Chesapeake,  etc.  R.  Co.  v.  King,  MacLeod,  35  C.  C.  A.  47,  92  Fed.  846, 
99  Fed.  251,  40  C.  C.  A.  432,  citing  and  other  cases. 

615 


§  606.]  CAKRIEKS    OF    PASSENGERS.  [PART   YI. 

purpose  of  selling  papers,  and  jumped  off  again,  he  was  held 
not  to  be  a  passenger  so  as  to  charge  the  company  with  special 
care  to  avoid  injuring  him,  and  this  though  he  intended  to  pay 
fare  if  the  conductor  asked  him  for  it.^  When  a  passenger 
alights  from  the  car  upon  the  street,  the  relation  of  passenger 
ceases,  for  he  is  not  upon  the  premises  of  the  company,  nor  is 
there  any  implied  obligation  or  duty  upon  the  part  of  the  com- 
pany to  provide  or  maintain  the  place  of  alighting.  "  The 
street,"  say  the  supreme  court  of  Massachusetts,  "  is  in  no  sense 
a  passenger  station  for  the  safety  of  which  a  street-railway 
company  is  responsible,  When  a  passenger  steps  from  the 
car  upon  the  street,  he  becomes  a  traveler  upon  the  highway 
and  terminates  his  relation  and  rights  as  a  passenger,  and  the 
railway  company  is  not  responsible  to  him  as  a  carrier  for  the 
condition  of  the  street,  or  for  his  safe  passage  from  the  car  to 
the  sidewalk.  "When  a  common  carrier  has  the  exclusive  oc- 
cupation of  its  tracks  and  stations,  and  can  arrange  and  man- 
age them  as  it  sees  fit,  it  may  be  properly  held  that  persons 
intending  to  take  passage  upon,  or  leave,  a  train  have  the  re- 
lation and  rights  of  passengers  in  leaving  or  approaching  the 
car  at  a  station.  But  one  who  steps  from  a  street-railway  car 
to  the  street  is  not  upon  the  premises  of  the  railway  company, 
but  upon  a  public  place  where  he  has  the  same  rights  with 
every  other  occupier,  and  over  which  the  company  has  no  con- 
trol. His  rights  are  those  of  a  traveler  upon  the  highways 
and  not  of  a  passenger."  ^ 

So  where  a  passenger  was  injured  after  leaving  the  car,  in 
attempting  to  pass  behind  it,  by  falling  over  a  fender  which 
had  become  disarranged  without  the  knowledge  of  the  com- 
pany and  was  projecting  from  the  rear  of  the  car,  it  was  held 
that  she  could  not  recover.  The  court  say:  "  It  is  admitted 
that  when  the  plaintiff  left  the  car  she  ceased  to  be  a  passenger 
of  the  defendant.  When  she  began  to  walk  toward  her  house 
she  was  merely  a  traveler  upon  the  highway.  The  respective 
rights  and  duties  of  the  plaintiff  and  the  defendant  were  not 
those  of  a  passenger  and  a  common  carrier,  but  those  of  a 

1  Raming  v.  Metropolitan  St.  Ry.  Railroad  Co.,  91  Pa.  St.  458,  3  Am. 
Co.,  157  Mo.  477;  Blackmere  v.  Rail-     Rep.  675. 

road  Co.,  28  U.  C.  Q.  B.  217;  Duff  v.        2  Creamer  v.  West  End  Street  Car 

Co.,  156  Mass.  320,  16  L.  E.  A.  490. 
616 


OH.  I.]  THE    RELATION WHO    ARE    PASSENGERS.       [§§   607,  608. 

padestrian  crossing  a  public  street  in  which  was  a  street-raii- 
Avay  track  then  occupied  by  a  street-car,  and  of  a  street-rail- 
way corporation  lawfully  using  the  same  street  in  its  traffic."  ^ 

§  607,  Reasonable  regulations. —  And  so  a  street-car 

company  has  the  right  to  make  and  enforce  reasonable  regula- 
tions as  touching  the  rights  of  persons  boarding  their  cars  or 
being  conveyed  as  passengers.  And  the  same  rules  and  princi- 
ples of  law  apply  in  this  particular  as  apply  to  steam-railway 
companies. 

§  608.  Must  occupy  usual  place  provided  by  the  company. 
The  carrier  company  cannot  be  said  to  have  received  a  person 
as  a  passenger  who  occupies  an  unusual  place  upon  its  vehicle; 
it  has  the  right  to  require  that  persons  shall  ride  in  the  places 
it  provides  if  such  places  are  reasonable  and  usual.  And  so 
where  a  boy  hangs  on  the  side  of  an  electric  car  with  his  feet 
resting  upon  the  boxing  of  the  axle  and  rode  there  without 
offering  to  pay  fare,  it  was  held  that  he  was  not  a  passenger 
to  whom  the  carrier  owed  a  safe  carriage  and  immunity  from 
injury.-  But  where  the  car  is  overcrowded  with  passengers, 
and  persons  are  compelled  to  occupy  unusual  places  for  car- 
rying passengers  upon  the  car,  as  the  front  platform  or  the 
rear  platform,  or  to  ride  upon  the  sides  and  steps,  and  their 
position  is  known  to  those  in  charge  of  the  car,  who  collect  fare 
from  such  persons  as  passengers,  they  are  beyond  question 
passengers  and  entitled  to  all  the  privileges  and  protection  of 
passengers.^ 

^  Gargan  v.  West  End  Street  Car  from  being  changed  as  usual  at  such 
Co.,  176  Mass.  106,  49  L.  R.  A.  421 ;  Bige-  point  from  one  end  of  tlie  car  to  the 
low  V.  West  End  Street  Car  Co.,  161  otliej-,  it  was  held  that  she  was  en- 
Mass.  393,  37  N.  E.  367.  titled  to  recover  as  a  passenger  for 

2  Udell  V.  St.  Ry.  Co.,  152  Ind.  507,  her  injury  in  the  absence  of  a  show- 

52  N.  E.  799.     Where  one   had  re-  ing  that  the  company  had  used  the 

ceived  a  transfer  from  one  line  of  a  highest  degree  of  care.     Keater  v. 

street  railway  company  to  its  other  Sci-anton  Tr.  Co.,  191  Pa.  St.  102,  43 

line,  and  was  proceeding  from  the  Atl.  86. 

sidewalk  to  her  car,  on  the  latter        ^Archer  v.  Ft.  Wayne,  etc.  Co.,  87 

line,  which  was  standing  at  the  end  Mich.    101;  Upham  v.    Detroit,  etc. 

of  the  route,  when  she  was  struck  by  Co.,  85  Mich.  12;  Noble  v.  Railway 

a  piece  of  the  trolley,  which  broke  Co.,  98  Mich.  249. 

617 


CHAPTEK  11. 


WHO  MUST  THE  CARRIER  ACCEPT  AND  CARRY,  AND  CERTAIN 
DUTIES  OF  CARRIERS  AND  PASSENGERS. 


§  609.  Quasi-Tpuhlic  servants. 

610.  Exceptions    to    the    general 

rule. 

611.  Carrier  must  protect  pas- 
sengers. 

612.  Right  to  separate  passengers 

according  to  sex. 

613.  Separation  of  races  a  reason- 

able regulation. 


Certain  Duties  Incumbent  Upon 

THE  Carrier. 
§  614.  Implied  obligation. 

615.  Vehicles,     machinery,     road- 

ways, tracks,  etc. 

616.  Stational  facilities. 

617.  Duty  in  managing  and  run- 

ning its  trains  or  vehicles, 

618.  The  duty  of  passengers. 


§  609.  Quasi-public  servants. —  Common  carriers  of  passen- 
gers like  common  carriers  of  goods  are  quasi-public  servants, 
and  so  are  bound  to  serve  the  public  when  their  reasonable  rules 
and  regulations  are  complied  with.  They  OAve  a  duty  to  all 
alike  to  carr}-^  passengers,  and  must  not  show  partiality  to 
any  person  or  class  of  persons.  "  At  this  day  it  would  be  su- 
perfluous to  enter  upon  a  discussion  to  support  the  doctrine  so 
well  settled,  that  common  carriers  are  public  agents,  transact- 
ing their  business  under  an  obligation  to  observe  equality 
towards  every  member  of  the  community,  to  serve  all  persons 
alike,  without  giving  unjust  or  unreasonable  advantages  by 
way  of  facilities  for  the  carriage  or  rate  for  transporting 
them."^ 

"A  person  having  a  public  duty  to  discharge  is  undoubtedly 
bound  to  exercise  such  office  for  the  equal  benefit  of  all,  and^ 
therefore,  to  permit  a  common  carrier  to  charge  various  prices 
according  to  the  person  with  whom  he  deals,  for  the  same  serv- 
ices, is  to  forget  that  he  owes  a  duty  in  the  community."^ 

Public  policy  would  not  permit  the  great  franchises  that  are 
granted  to  and  operated  by  common  carriers  of  the  country  to 


1  Atwater  v.  Delaware,  etc.  R.  Co. , 
48  N.  J.  L.  55,  57;  1  Wood  on  Rail- 
ways, sec.  195.  A  leading  case  upon 
this  subject  is  said  to  be  Messenger 


V.  Pennsylvania  R  Co.,  7  Vroom  (N, 
J.),  407,  8  Vroom,  531. 

2Messengerv.  Pennsylvania  R.  Co^^ 
above  cited. 
618 


CH.  II.]  WHO   MUST    CAKRIER   ACCEPT    AND    CARRY.       [§§  610,  611. 

be  used  other  than  impartially  and  for  the  public,  and  so  the 
same  general  rule  exists  that  obtains  in  the  case  of  innkeepers. 

Common  carriers  are  bound  to  receive  all  passengers  who 
apply  for  carriage  so  long  as  they  have  convenient  accommo- 
dations for  their  safe  carriage,  unless  there  is  a  sufficient  legal 
excuse  for  refusing  to  do  so.^ 

Professor  Parsons  in  his  work  on  Contracts^  says:  "It  is  his 
duty  to  receive  all  passengers  who  offer;  to  carry  them  the 
whole  route;  to  demand  no  more  than  the  usual  and  established 
compensation." 

§  610.  Exceptions  to  the  general  rule. —  But  to  this  general 
rule  there  are  exceptions.  The  right  of  persons  to  be  trans- 
ported is  not  unlimited,  "but  is  subject,"  says  Judge  Story ,^ 
"to  such  reasonable  regulations  as  the  proprietor  may  pre- 
scribe for  the  due  accommodation  of  passengers,  and  for  the 
due  arrangement  of  their  business.  The  proprietors  have  not 
only  this  right,  but  the  further  right  to  consult  and  provide 
for  their  own  interests  in  the  management  of  such  boats  as  a 
common  incident  to  their  right  of  property." 

§011.  Carrier  must  protect  passengers. —  The  car- 
rier of  passengers  is  bound  to  protect  them  against  violence 
and  injuries  not  only  from  its  own  servants,  but  from  stran- 
gers and  co-passengers,  and  this  liability  is  upon  the  carrier 
from  the  time  a  person  becomes  a  passenger,  or  entitled  to 
protection  as  such,  until  that  relation  ceases.*  And  so  it  will 
be  seen  that  the  carrier  must  protect  the  passenger  from  in- 
juries from  third  persons  while  in  the  depot  of  the  company, 

1  Bennett  v.  Button,  10  N.  H.  481,  Gourdin,  2  Nott  &  McCord  (S.  C),  23 
486.  Markham  v.   Brown,  8  N.    H.   523 

2  2  Parsons,  Contracts,225:  Wheeler  Peanson  v.  Duane,  4  Wall.  (U.  S.)  605 
V.  San  B'rancisco,  etc.  R.  Co.,  31  Cal.  McKee  v.  Owen,  15  Mich.  115.  "A 
46,  86  Am.  Dec.  147.  In  Toledo,  etc.  common  carrier  of  passengers  may 
R.  Co.  V.  Pence,  68  111.  524,  it  was  establish  on  his  car  or  vessel  aii 
held  that  railroad  companies  are  agency  for  the  delivery  of  passengers' 
public  highways  only  in  the  sense  of  baggage,  and  may  exclude  all  other 
being  compelled  to  accept  and  carry  persons  from  entering  upon  it  for  the 
all  passengers  to  the  extent  of  their  purpose  of  soliciting  or  receiving 
liability.  Indianapolis,  etc.  R.  Co.  v.  orders  from  persons  in  competition 
Renard,  46  Ind.  203.  with  such  agency."     Barney  v.  O.,  B. 

3  Jencks  v.  Coleman,  2  Sumn.  (U.  S.)  &  H.  S.  S.  Co.,  67  N.  Y.  301. 

222.  In  this  case  Daniel  Webster  was        *  Exton  v.  Cent.  R  Co.,  63  N.  J.  L. 
of  counsel  and  Charles  Sumner  was     350,  46  Atl.  1099. 
the  reporter  of  the  court.     Cook  v. 

619 


§  612.]  CAEEIEES    OF   PASSENGEES.  [PAET   YI. 

its  baggage-rooms  or  Avaiting-rooms,  as  well  as  upon  its  trains 
or  vehicles  while  being  transported.^  Because  of  this  liability 
the  law  permits,  and  it  may  be  said  assists,  the  carrier  in  avoid- 
ing it.  It  is  therefore  well  settled  that  the  carrier  may  re- 
fuse to  receive  persons  within  its  depots  or  upon  its  trains  as 
passengers  who  assault  its  passengers,  or  are  liable  to  do  so,  or 
to  do  that  for  which  the  carrier  would  incur  a  liability.  And 
so  it  has  been  held  that  persons  who  are  insane  or  disorderly, 
gamblers,  montemen,  drunken  persons,  persons  who  are  ex- 
tremely filthy  or  are  infected  with  contagious  diseases,  or  of 
notorious  and  unequivocally  bad  character,  or  who  are  guilty 
of  gross  and  vulgar  habits  of  conduct  and  create  disturbances  on 
board,  or  ^vho  refuse  to  comply  with  the  reasonable  regula- 
tions of  the  carrier,  may  be  rejected  by  the  carrier,  and  if  they 
have  boarded  their  train  or  vehicle  the  carrier  may  eject  them.-^ 
§  612.  Right  to  separate  passengers  according  to  sex. — 
While  it  is  true  that  every  person  has  the  right  to  be  trans- 
ported by  the  carrier,  and,  if  he  complies  with  its  reasonable 
regulations  and  is  a  fit  person  for  carriage,  has  the  right  to 
enter  its  vehicles  as  a  passenger,  it  has  been  held  that  a  regu- 
lation which  separates  the  passengers  according  to  sex,  or 
which  separates  passengers  into  different  classes  according  to 
the  amount  of  fare  they  pay  or  are  charged,  is  a  reasonable 
regulation.*     And  it  has  been  held  that  a  regulation  that  none 

1  Wood  V.  Railway  Co.,  101  Ky.  703.  just,  no  rights  guaranteed  here  were 

2  Hutchinson  on  Carriers,  539;  Pier-  denied.  The  civil  rights  to  whicL 
:Son  V.  Duane,  4  Wall.  (U.  S.)  605;  plaintiff,  as  a  passenger,  was  entitled 
Stevenson  v.  West  Seattle,  etc.  Co.,  from  defendant  as  a  carrier  was  a 
22  Wash.  84,  60  Pao.  51 ;  Freedon  v.  carriage  in  a  car  in  which  accommo- 
N.  Y.  Cent.  etc.  Co.,  48  N.  Y.  S.  584.  dations,  safety  and  protection  were 

3  Day  V.  Owen,  5  Mich.  520.  In  afforded  her  equal  to  what  was  af- 
Chilton  V.  St.  Louis,  etc.  R.  Co.,  114  forded  other  passengers  paying  the 
Mo.  88,  19  L.  R.  A.  269,  held:  "A  rail-  same  fare."  Civil  Rights  Cases,  109 
road  corporation  as  a  common  car-  U.  S.  3;  Hutchinson  on  Carriers,  sec. 
rier  has  no  right  to  make  unjust  dis-  542;  Hall  v.  De  Cuir,  95  U.  S.  485; 
crimination  against  any  passenger.  West  Chester,  etc.  Co.  v.  Miles,  55  Pa. 
whatever  his  color,  race  or  sex;  and  St.  209.  In  Iowa  it  was  held  that  a 
any  regulation  which  would  have  steamboat  company  was  liable  for 
unjustly  discriminated  against  the  removing  a  negro  passenger  from  a 
plaintiff  on  account  of  color  alone,  dinner  table  which  had  been  pro- 
would  have  been  contrary  to  the  vided  and  intended  for  white  passen- 
principlesof  the  common  law  as  well  gers  exclusively.  Coger  v.  Packet 
as  the  provision  of  the  constitution.  Co.,  37  Iowa,  145. 

If  the  regulation  was  reasonable  and 

620 


CH.  II.]  WHO   MUST    CARRIER   ACCEPT    AND    CARET.  [§  613. 

but  ladies,  or  ladies  accompanied  by  male  attendants  or  friends, 
shall  be  admitted  to  certain  cars,  is  reasonable  and  valid.'  The 
carrier,  however,  must  furnish  a  place  for  the  passenger,  and 
where  a  seat  could  not  be  found  elsewhere  it  was  held  that  a 
passenger  might  enter  the  ladies'  car  from  which  otherwise 
the  regulations  would  exclude  him.'^ 

§613.  Separation  of  races  a  reasonable  regulation. —  In 
the  absence  of  statutes,  any  regulation  of  the  common  carrier 
is  tested  by  its  reasonableness;  and  so  a  regulation  of  the  com- 
mon carrier  requiring  the  separation  of  colored  from  white 
passengers,  if  there  are  no  statutes  upon  the  subject,  would 
wholly  depend  for  its  legal  enforcement  upon  its  reasonable- 
ness. Upon  this  subject  the  rulings  have  generally  been  that 
the  carrier  is  obliged  to  furnish  equal  accommodations  to  each 
class.  That  is  to  say,  if  colored  passengers,  by  a  regulation 
of  the  company,  are  not  allowed  to  ride  in  the  cars  provided 
for  white  passengers,  it  is  incumbent  upon  the  company  to  fur- 
nish as  equally  good  and  convenient  accommodations  for  such 
passengers  in  another  part  of  its  train  or  vehicle,  as  it  is 
"equality  of  rights,  and  not  identity  or  community  of  rights," 
that  is  vouchsafed.  The  several  states  may  no  doubt  enact 
statutes  upon  this  subject  forbidding  any  discrimination  or 
separation,  but  it  seems  that  such  a  statute  would  be  void  when 
applied  to  railroad  companies  operating  lines  of  railroad  ex- 
tending through  different  states;  that  it  would  not  apply  to 
interstate  transportation.'' 

This  question  has  often  been  before  the  courts,  it  being 
urged  that  this  discrimination  was  illegal  because  of  the  four- 

1  Peck  V.  Railway  Co.,  70  N.  Y.  587.  cars  in  which  white  women  and  men 

'^  Bass  V.  Railway  Co.,  86  Wis.  450;  travel  on  the  same  train,  all  holding 

State  V.  Overton,  27  N.  J.  L.  435.    As  first-class  tickets,  for  which  the  same 

to  separation  of  passengers  on  ac-  fare  is  paid. 

count  of  color,  see  Hurd  V.  Railway        ^  fjall  v.  DeCuir,95U.  S.  485.    Chief 

Co.,    3    Interstate    Com.    Rep.    Ill,  Justice  Waite,  in  Hall  v.  De  Cuir,  in 

where  it  was  held  by  Commissioner  rendering  the  opinion  in  a  case  where 

Bragg  tliat  the  defendant  is  justi-  this  question  was  involved,  says:  "If 

fied  in  so  doing  if  the  compartment  each  state  was  at  liberty  to  regulate 

of  the   car,  or  the  car,  as   the   case  the  conduct  of  carriers  while  within 

may   be,   is   equal  in  safety  of  con-  itsjurisdiction,theconfusion  likely  to 

struction,  comfort  and  accommoda-  follow  could  not  but  be  productive  of 

tion,  and  the  protection  afforded  to  great  inconvenience  and  unnecessary 

passengers,  to  what  is  found  in  other  hardship.     Each  state  could  provide 

631 


§  613.] 


CARRIERS    OF   PASSENGERS. 


[part    VI. 


teentli  amendment  of  the  constitution,  which  is  as  follows: 
"No  state  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United  States; 
nor  shall  any  state  deprive  any  person  of  life,  liberty  or  prop- 


for  its  own  passengers  and  regulate 
the  transportation  of  its  own  freight, 
regardless  of  the  interests  of  others. 
Nay  more,  it  could  prescribe  rules  by 
which  the  carrier  must  be  governed 
within  the  state  in  respect  to  pas- 
sengers and  property  brought  from 
without.  On  one  side  of  the  river  or 
its  tributaries  he  might  be  required 
to  observe  one  set  of  rules,  and  on 
the  other  another.  Commerce  can- 
not flourish  in  the  midst  of  such  em- 
barrassments. Xo  carrier  of  passen- 
gers can  conduct  his  business  with 
satisfaction  to  himself  or  comfort  to 
those  employing  him,  if,  on  one  side 
of  a  state  line,  his  passengers,  both 
white  and  colored,  must  be  permitted 
to  occupy  the  same  cabin,  and  on  the 
other  be  kept  separate.  Uniformity 
in  the  regulations  by  which  he  is  to 
be  governed  from  one  end  to  the 
other  of  his  route  is  a  necessity  in  his 
business,  and  to  secure  it  congress, 
which  is  untranimeled  by  state  lines, 
has  been  invested  with  the  exclusive 
legislative  power  of  determining 
what  such  regulations  shall  ba  If 
this  statute  can  be  enforced  against 
those  engaged  in  interstate  com- 
merce, it  may  be  as  well  against  those 
engaged  in  foreign ;  and  the  master 
of  a  ship  clearing  from  New  Orleans 
for  Liverpool,  having  passengers  on 
board,  would  be  compelled  to  carry 
all,  white  and  colored,  in  the  same 
cabin  during  his  passage  down  the 
river,  or  be  subject  to  an  action  for 
damages,  'exemplary  as  well  as  act- 
ual,' by  any  one  who  felt  himself 
aggrieved  because  he  had  been  ex- 
cluded on  account  of  his  color.  This 
power  of  regulation  may  be  exer- 
cised without  legislation  as  well  as 
with  it.     By  refraining  from  action, 


congress,  in  effect,  adopts  as  its  own 
regulations  those  which  the  common 
law  or  the  civil  law,  where  that  pre- 
vails, has  provided  for  the  govern- 
ment of  such  business,  and  those 
which  the  states,  in  the  regulation 
of  their  domestic  concerns,  have  es- 
tablished affecting  commerce,  but 
not  regulating  it  within  the  mean- 
ing of  the  constitution." 

And  Mr.  Justice  Clifford  in  the 
same  case  ^ys:  "  Repeated  decisions 
of  this  court  have  determined  that 
the  power  to  regulate  commerce  em- 
braces all  the  instruments  by  which 
such  commerce  may  be  conducted; 
and  it  is  settled  law  that  where  the 
subject  to  which  the  power  applies  is 
national  in  its  character,  or  of  such 
a  nature  as  to  admit  of  uniformity 
of  regulation,  the  power  is  exclusive 
of  all  state  authority.  Whatever  sub- 
jects of  this  power,  says  Mr.  Justice 
Curtis,  are  in  their  nature  national, 
or  admit  only  of  one  uniform  system 
or  plan  of  regulation,  may  justly  be 
said  to  be  of  such  a  nature  as  to  re- 
quire exclusive  legislation  by  con- 
gress. Difficulty  may  attend  the 
effort  to  prescribe  any  definition 
which  will  guide  to  a  correct  result 
in  every  case;  but  it  is  clear  that  a 
regulation  which  imposes  burden- 
some or  impossible  conditions  on 
those  engaged  in  commerce,  whether 
with  foreign  nations  or  among  the 
several  states,  must  of  necessity  be 
national  in  its  character.  .  .  . 
Such  a  subect  is  in  its  nature  na- 
tional, and  admits  of  only  one  uni- 
form system  or  plan  of  regulation. 
Unless  the  system  or  plan  of  regu- 
lation is  uniform,  it  is  impossible  of 
fulfillment.  Mississippi  may  require 
the  steamer  carrying  passengers  to 


623 


OH.  II.] 


"WHO   MUST   CAKKIER    ACCEPT   AND    CAKEY. 


[§  613. 


€rty  without  due  process  of  law,  nor  deny  to  any  person  within, 
its  jurisdiction  the  equal  protection  of  the  laws."  But  the  rul- 
ings have  been  that  this  amendment  does  not  of  itself  give 
congress  even  the  power  to  protect  by  legislation  the  rights 


provide  two  cabins  and  tables  for 
passengers,  and  may  make  it  a  penal 
offense  for  white  and  colored  persons 
to  be  mixed  in  the  same  cabin  or  at 
the  same  table.  If  Louisiana  may 
pass  a  law  forbidding  such  steamer 
from  having  two  cabins  and  two 
tables, —  one  for  white  and  the  other 
for  colored  persons, —  it  must  be  ad- 
mitted that  Mississippi  may  pass  a 
law  requiring  all  passenger  steamers 
<}utering  her  ports  to  have  separate 
cabins  and  tables,  and  make  it  penal 
for  white  and  colored  persons  to  be 
accommodated  in  the  same  cabin  or 
to  be  furnished  with  ■  meals  at  the 
same  table.  Should  state  legislation 
in  that  regard  conflict,  then  the 
steamer  must  cease  to  navigate  be- 
tween ports  of  the  states  having 
such  conflicting  legislation,  or  must 
be  exposed  to  penalties  at  every 
trip.  Those  who  framed  the  consti- 
tution never  intended  that  naviga- 
tion, whether  foreign  or  among  the 
states,  should  be  exposed  to  such 
conflicting  legislation;  and  it  was  to 
save  those  who  follow  that  pursuit 
from  such  exposure  and  embarrass- 
ment that  the  power  to  regulate 
such  commerce  was  vested  exclu- 
sively in  congress.  .  .  .  Steamers 
carrying  passengers  for  hire  are 
bound,  if  they  have  suitable  accom- 
modation, to  take  all  who  apply  un- 
less there  is  objection  to  the  char- 
acter or  conduct  of  the  applicant. 
Applicants  to  whom  there  is  no  such 
valid  objection  have  a  right  to  a,  pas- 
sage, but  it  is  not  an  unlimited  right. 
On  the  contrary,  it  is  subject  to  such 
regulations  as  the  proprietors  may 
prescribe  for  the  due  accommoda- 
tion of  passengers  and  the  due  ar. 
rangement  of  the    business   of  the 


carrier.  Such  proprietors  have  not 
only  that  right,  but  the  further  right 
to  consult  and  provide  for  their  own 
interests  in  the  management  of  the 
vessel  as  a  common  incident  to  their 
right  of  property.  They  are  not 
bound  to  admit  passengers  on  board 
who  refuse  to  obey  the  reasonable 
regulations  of  the  vessel,  or  who  are 
guilty  of  gross  and  vulgar  habits  of 
conduct,  or  who  make  disturbances 
on  board,  or  wliose  characters  are 
doubtlal,  dissolute,  suspicious,  or  un- 
equivocally bad.  Nor  are  they  bound 
to  admit  passengers  on  board  whose 
object  it  is  to  interfere  with  the  in- 
terests of  the  patronage  of  the  pro- 
prietors so  as  to  make  their  business 
less  lucrative  or  their  management 
less  acceptable  to  the  public. 

"  Corresponding  views  are  ex- 
pressed by  the  supreme  court  of  Mich- 
igan in  an  analogous  case,  in  which 
the  distinction  between  the  right 
of  an  applicant  to  be  admitted  on 
board,  and  his  claim  to  dictate  what 
part  of  the  vessel  he  shall  occupy,  is 
clearly  pointed  out.  Referring  to 
that  subject,  the  court  say  the  right 
to  be  carried  is  one  thing,  and  the 
privilege  of  a  passenger  on  board  as 
to  what  part  of  the  vessel  may  be 
occupied  by  him  is  another  and  a  very 
different  thing;  and  they  add,  that 
it  is  the  latter  and  not  the  former 
which  is  subject  to  reasonable  rules 
and  regulations,  and  is,  where  such 
rules  and  regulations  exist,  to  be  de- 
termined by  the  proprietors.  Dam- 
ages were  claimed  in  that  case  for 
refusing  the  plaintiff  the  privilege  of 
the  cabin;  but  the  court  held  that 
the  refusal  was  nothing  more  or  less 
than  denying  him  certain  accommo- 
dations from  which  he  was  excluded 


623 


613.] 


CAKRIEES    OF    PASSENGERS, 


[part  VI. 


pertaining  to  state  or  natural  citizenship;  that  its  inhibitions 
are  directed  solely  against  action  by  the  states,  and  not  against 
actions  by  individuals;  and  that  therefore  congress  had  no 
power  to  protect  rights  claimed  by  colored  citizens  to  occupy 


by  the  rules  and  regulations  of  the 
steamer.  Proprietors  of  the  kind 
may  make  rules  and  regulations,  but 
they  must  be  reasonable;  and  the 
court  held  in  that  case  that  to  be  so 
they  should  have  for  their  object  the 
accommodation  of  the  passengers,  in- 
cluding everything  to  render  the 
transportation  most  comfortable  and 
least  annoying,  not  to  one  or  two  or 
any  given  number  carried  at  any  par- 
ticular time,  but  to  the  great  majority 
ordinarily  transported:  and  they  also 
held  that  such  rules  and  regulations 
should  be  of  a  permanent  nature,  and 
not  be  made  for  a  particular  occasion 
or  emergencj-.  Special  and  importan  t 
duties  indubitably  are  imposed  upon 
carriers  of  passengers  for  the  benefit 
of  the  traveling  public;  but  it  must 
not  be  forgotten  that  the  vehicles 
and  vessels  which  such  carriers  use 
do  not  belong  to  the  public.  They 
are  priv^ate  property,  the  use  and  en- 
joyment of  which  belong  to  the  pro- 
prietors. Concede  what  is  undoubt- 
edly true,  that  the  use  and  employ- 
ment of  such  vehicles  and  vessels, 
during  the  time  they  are  allowed  the 
privileges  of  common  carriers,  may 
be  subjected  to  such  conditions  and 
obligations  as  the  nature  of  their 
employment  requires  for  the  com- 
fort, security  and  safety  of  passen- 
gers, still  the  settled  rules  of  consti- 
tutional law  forbid  that  a  state  legis- 
lature may  invade  the  dominion  of 
private  right  by  arbitrary  restric- 
tions, requirements  or  limitations,  by 
which  the  proj)erty  of  the  owners  or 
possessors  would  be  virtually  stripped 
of  all  utility  or  value  if  bound  to 
comply  with  the  regulations.  Both 
steamboats  and  railways  are  modern 
modes  of  conveyance;  but  Shaw,  C.J. , 

6: 


decided  that  the  rules  of  common 
law  were  applicable  to  thera,  as  they 
take  the  place  of  other  modes  of  car- 
rying passengers,  and  he  held  that 
they  have  authority  to  make  reason- 
able and  suitable  regulations  as  re- 
gards passengers  intending  to  pass 
and  repass  in  their  vehicles  or  vessels. 
They  are,  said  the  chief  justice  in 
that  case,  in  a  condition  somewhat 
similar  to  that  of  an  innkeeper,  whose 
premises  are  open  to  all  guests.  Yet 
he  is  not  only  empowered  to  make 
such  proper  arrangements  as  will 
promote  his  own  interests,  but  he  is 
bound  to  regulate  his  house  so  as  to 
preserve  order,  and,  if  practicable, 
prevent  breaches  of  the  peace.  Cases 
of  like  import  are  quite  numerous, 
and  the  supreme  court  of  Pennsyl- 
vania decided  directly  that  a  public 
carrier  may  separate  passengers  in 
his  conveyance ;  and  they  deduce  his 
power  to  do  so  from  his  right  of  pri- 
vate property  in  the  means  of  con- 
veyance, and  the  necessity  which 
arises  for  such  a  regulation  to  pro- 
mote the  public  interest.  Speaking 
to  that  point,  they  say  that  the  pri- 
vate means  the  carrier  uses  belong 
wholly  to  himself;  and  they  held  the 
right  of  control  in  that  regard  as 
necessary  to  enable  the  carrier  to 
protect  his  own  interests,  and  to  per- 
form his  duty  to  the  traveling  public. 
His  avithority  in  that  regard,  as  that 
court  holds,  arises  from  his  owner- 
ship of  the  property,  and  his  public 
duty  to  promote  the  comfort  and 
enjoyment  of  those  traveling  in  his 
conveyance.  Guided  by  those  views, 
the  court  held  that  it  is  not  an  un- 
reasonable regulation  to  seat  passen- 
gers so  as  to  preserve  order  and  de- 
corum, and  to  prevent  contacts  and 
2i 


ClI.  II.]  WHO   MUST    CARRIER    ACCEPT    AND    CARRY.  [§  613. 

places  in  the  carrier's  vehicle  contrary  to  the  regulation  under 
discussion.^ 

In  the  Civil  Bights  Cases-  Mr.  Justice  Bradley  uses  this  lan- 
guage: "  It  is  state  action  of  a  particular  character  that  is  pro- 
hibited. Individual  invasion  of  individual  rights  is  not  the 
subject-matter  of  the  amendment.  It  has  a  deeper  and  broader 
scope.  It  nullifies  and  makes  void  all  state  legislation  and 
state  action  of  every  kind  which  impairs  the  privileges  and 
immunities  of  citizens  of  the  United  States,  or  which  injures 
them  in  life,  liberty  or  property  withoutdue  process  of  law,  or 
which  denies  to  any  of  them  the  equal  protection  of  the  laws. 
It  not  only  does  this,  but  in  order  that  the  national  will  thus 
declared  may  not  be  a  mere  hruttiinfulmen,  the  last  section  of 
the  amendment  invests  congress  with  power  to  enforce  it  by 
appropriate  legislation.  To  enforce  what?  To  enforce  the 
prohibition.  To  adopt  appropriate  legislation  for  correcting 
the  effects  of  such  prohibited  state  laws  and  state  acts,  and 
thus  to  render  them  effectually  null,  void  and  innocuous.  This 
is  the  legislative  power  conferred  upon  congress,  and  this  is  the 
whole  of  it."  And  it  was  therefore  held  that  congress  could 
not  legislate  upon  the  subjects  that  are  within  the  dominion  of 
state  legislatures,  and  that  therefore  the  act  of  March  1,  1875, 
declaring  that  all  colored  citizens  shall  have  the  same  accom- 
modations in  inns,  public  places,  conveyances,  etc.,  is  unconsti- 
tutional, for  it  belongs  to  the  states.  In  West  Chester^  etc.  Co.  v. 
Miles  "^  it  was  held  that "  no  one  can  be  excluded  from  carriage  by 

collisions   arising  from    natural  or  i  Smoot  v.  Kentucky  Cent.  R.  Co., 

well-known  customary  repugnancies  13  Fed.  337;  United  States  v.  Wash- 

which  are  likely  to  breed  disturb-  ington,   20  Fed.   630,  4  Wood,   349; 

ances  where  white  and  colored  per-  Cully  v.  B.  &  O.  Ry.  Co.,  Fed.  Cases 

sons  are  huddled  together  without  No.  3466  (1  Hughes,  536). 

their  consent."     Cooley  v.  Board  of  2i09  U.  S.  3,  II. 

Wardens,  12  How.  299;  Henderson  v.  ^  55  Pa.  St.  209.     "At  common  law 

Mayor  of  New  York,  92  U.  S.  259;  a  railroad   com|)any,  as  a  common 

Jencks  V.  Coleman,  2  Sumn.  221;  Day  carrier  of  passengers,  could   not  ca- 

V.  Owen,  5  Mich.  520;  Commonwealth  priciously  discriminate  between  j)as- 

V.  Power.  7  Mete.  (Mass.)  601;  Hibbard  sengers  on  account  of  their  nation- 

V.  New  York  &  Erie  Ry.  Co.,  15  N.  Y.  ality,  color,  race,  social  position  or 

455;  111.  Cent.  Ry.  Co.  V.  Whittemore,  tlieir  political  or  religious  beliefs." 

43  111.  420;  Vinton  v.  Middlesex  Ry.  Chicago,  etc.  Ry.  Co.  v.  Williams,  55 

Co.,  11  Allen  (Mass.),  304;  West  Clies-  111.  185,  8  Am.  Rep.  641.     And  it  has 

ter  &  Phil.  Ry,  Co.  v.  Miles,  55  Pa.  St.  been  lield  that,  independent  of  con- 

209.  stitutional  or  statutory  provisions, 
40                                              625 


§  613.]  CARRIERS    OF    PASSENGERS.  [PART    VI. 

a  public  carrier  on  account  of  color,  religious  belief,  political  re- 
lations or  prejudices."  But  as  to  the  separation  of  white  and 
colored  passengers,  where  the  accommodations  furnished  to 
each  were  the  same,  and  in  all  respects  comfortable,  safe  and 
convenient,  and  not  inferior  in  any  respect  the  one  to  the  other, 
the  court  say:  " This  question  must  be  decided  upon  reason- 
able grounds.  If  there  be  no  clear  and  reasonable  difference  to 
base  it  upon,  separation  cannot  be  justified  by  mere  prejudice. 
Nor  is  merit  a  test.  .  .  .  The  right  of  the  carrier  to  sepa- 
rate his  passengers  is  founded  upon  two  grounds  —  his  right 
of  private  property  in  the  means  of  conveyance,  and  the  public 
interest.  The  private  means  he  uses  belong  wholly  to  himself, 
and  imply  the  right  of  control  for  the  protection  of  his  own 
interest,  as  well  as  the  performance  of  his  public  duty.  He 
may  use  his  property,  therefore,  in  a  reasonable  manner.  It  is 
not  an  unreasonable  regulation  to  seat  passengers  so  as  to  pre- 
serve order  and  decorum,  and  to  prevent  contacts  and  collisions 
arising  from  natural  or  well-known  customary  repugnancies, 
which  are  likely  to  breed  disturbances  by  a  promiscuous  sit- 
ting. This  is  a  proper  use  of  the  right  of  private  property, 
because  it  tends  to  protect  the  interests  of  the  carrier  as  well 
as  the  interests  of  those  he  carries.  If  the  o^round  of  regulation 
be  reasonable,  courts  of  justice  cannot  interfere  with  his  right 
of  property.  The  right  of  the  passenger  is  only  that  of  being 
carried  safely,  and  with  a  due  regard  to  his  personal  comfort 
and  convenience,  which  are  promoted  by  a  sound  and  well- 
regulated  separation  of  passengers.  An  analogy  and  an  illus- 
tration are  found  in  the  case  of  an  innkeeper  who,  if  he  have 
room,  is  bound  to  entertain  proper  guests,  and  so  a  carrier  is 
bound  to  receive  passengers.  But  a  guest  in  an  inn  cannot 
select  his  room  or  his  bed  at  pleasure;  nor  can  a  voyager  take 
possession  of  a  cabin  or  a  berth  at  will,  or  refuse  to  obey  the 
reasonable  orders  of  the  captain  of  a  vessel.  ...  If  a  right 
of  private  property  confers  no  right  of  control,  who  shall  de- 
cide a  contest  between  passengers  for  seats  or  berths  ?  Courts] 
of  justice  may  interpose  to  compel  those  who  perform  a  busi- 
ness concerning  the  public,  by  the  use  of  private  means,  to] 

innkeepers  and  common  carriers  are  public  policy  requires  them  to  do  saj 
bound  to  furnish  equal  facilities  to  People  v.  King,  110  N.  Y.  418,  6  Am. 
all  without  discrimination,  because    St.  Rep.  389. 

626 


CII.  n.]  WHO    MUST    CAREIER    ACCEPT    AND    CARRY.  [§  Cl-i. 

fulfill  their  duty  to  the  public — but  not  a  whit  beyond.  The 
public  also  has  an  interest  in  the  proper  regulation  of  public 
conveyances  for  the  preservation  of  the  public  peace.  A  rail- 
road company  has  the  right  and  is  bound  to  make  reasonable 
regulations  to  preserve  order  in  their  cars.  It  is  the  duty  of 
the  conductor  to  repress  tumults  as  far  as  he  reasonably  can, 
and  he  may,  on  extraordinary  occarions,  stop  his  train  and 
eject  the  unruly  and  tumultuous.  ...  In  order  to  preserve 
and  enforce  his  authority  as  the  servant  of  the  company  it 
must  have  a  power  to  establish  proper  regulations  for  the  car- 
riage of  passengers.  It  is  nluch  easier  to  prevent  difficulties 
among  passengers  by  regulations  for  their  proper  separation 
than  it  is  to  quell  them." 

It  would  therefore  seem  to  be  the  rule  that  state  legislatures 
may  regulate  this  question  by  statute  where  the  lines  of  trans- 
portation are  within  their  own  state,  but  that  they  have  no 
power  where  the  companies'  lines  are  what  may  be  called  inter- 
state lines,  and  so  very  many  of  the  states  have  enacted  stat- 
utes upon  the  subject.^ 

Certain  Duties  Incumbent  Upon  the  Caeeiek. 

§614.  Implied  obligation. —  While  the  carrier  of  passen- 
gers is  not  a  guarantor  of  the  safety  of  the  passenger  he  car- 
ries, and  has  a  right  to  rely  upon  his  using  at  least  ordinary 
intelligence  by  way  of  taking  care  of  himself  and  avoiding  in- 
jury, nevertheless  the  degree  of  diligence  required  of  the  car- 
rier is  very  great.  He  is  under  an  implied  obligation  to  look 
after  the  safety  of  his  patrons,  and  to  do  all  that  he  can  do  to 
safely  transport  them. 

"  The  carrier,"  says  Mr.  Hutchinson,  quoting  with  approval 
from   Christie  v.   Griggs^  "is   bound  to  provide  for  his  safe 

1  "A  rule  providing  for  the  separa-  Ey.  Co.  v.  Mississippi,  etc.  Co.,  133 

tion  of  wlute  and  colored  passengers  U.  S.  587;    Plessy  v.  Ferguson,  163 

in  cars  in  all  respects  equal  in  com-  U.  S.  537;  Anderson  v.  Louisville,  etc. 

fort,  held  to  be  reasonable."     Chesa-  Ry.  Co.,  G3  Fed.  46.     And  see  cases 

peake,  etc.  Co.  v.  Wells,  85  Tenn.  618;  collected,  6  Am.  &  Eng.  Encycl.  of 

Chicago,  etc.  Ry.  Co.  v.  Williams,  55  Law  (2d  ed.),  82,  83. 
111.  185;  People  V.  Gallagher,  93  N.  Y.        '^2  Camp.  79;  Hutchinson  on  Car- 

438,  45  Am.  Rep.  232;  Louisville,  etc.  riers,  500,  and  cases  cited. 

627 


§§  615,  616.]  CARRIEKS    OF   PASSENGEKS.  [PART   VI. 

conveyance  '  as  far  as  human  care  and  foresight  will  go,'  and 
this,  or  equivalent  language,  has  been  employed  almost  univer- 
sally in  subsequent  cases  in  which  the  obligation  of  the  passen- 
ger carrier  has  been  defined."  And  in  Palmer  v.  Canal  Co}  the 
court  say :  "  The  carrier  must  use  the  utmost  care  and  diligence 
which  human  prudence  and  foresight  will  suggest."  So  it  fol- 
lows that  this  high  degree  of  diligence,  this  duty  to  exercise 
the  very  highest  degree  of  care,  obtains  in  the  operation  of 
almost  every  department  of  the  carrier's  business,  this  required 
diligence  only  being  modified  as  the  surroundings  are  more  or 
less  dangerous. 

§  615.  Teliicles,  machinery,  roadways,  traclis,  etc. —  The 
vehicle,  whether  it  be  a  stage-coach,  a  steamboat  or  a  railroad 
train,  must  be  safe  and  suitable  for  the  purpose  for  which  it  is 
employed.  The  motive  power  must  be  sufficient  and  suitable 
for  the  business;  the  roadway  and  tracks  must  be  in  condition 
fit  for  the  undertaking;  and  it  is  the  duty  of  the  carrier  to  see 
that  all  these  are  safe  and  adapted  to  the  purpose  for  which 
they  are  used.  IS^ot  only  is  it  the  duty  of  the  carrier  to  furnish 
safe  vehicles,  machinery,  roadways  and  tracks,  but  he  is  re- 
quired to  furnish  them  with  the  necessary  equipments  for  the 
comfort  of  the  passengers;  as,  for  example,  the  cars  must  be 
suitably  seated  and  lighted,  with  suitable  heating  apparatus, 
with  necessary  retiring  rooms ;  and  if  it  be  a  sleeping-car  or  boat 
upon  which  night  journeys  are  taken,  it  must  be  provided  with 
suitable  supplies  for  its  berths  and  sleeping  apartments,  such 
as  the  ordinary  passenger  would  require.^ 

§  616.  Stational  facilities. —  The  carrier  is  required  to  fur- 
nish proper  and  suitable  stational  facilities,  such  as  platforms, 
waiting-rooms,  and  the  like;  such  facilities  as  the  particular 
business  in  which  he  is  engaged  requires.  He  must  so  keep 
the  stations  that  passengers  may  with  safety  enter  or  leave  his 
vehicles.  This  liability  grows  out  of  the  implied  invitation  of 
the  carrier  to  persons  to  come  to  their  stations  and  avail  them- 
selves of  the  transportation  they  offer.  This  duty  is,  however, 
more  or  less  modified  by  the  place  where  the  stations  or  stop- 
ping points  may  be.     As,  for  example,  more  care  is  demanded 

1 120  N.  Y.  170.  2  Wood  v.  Railroad  Co.,  84  Ga.  363,  10  S.  K  967. 

628 


CH,  II.]         WHO   MUST    CAERIER   ACCEPT  AND  OAERT.         [§§  617,  618. 

and  required  at  a  station  in  a  large  city,  where  a  great  many 
passengers  daily  congregate,  depart  and  arrive,  than  at  a 
country  cross-road  or  at  a  mere  flag-station  where  trains  seldom 
stop.^ 

§  617.  Duty  in  managing  and  running  its  trains  or  velii- 
cles. —  The  duty  that  is  imposed  upon  the  carrier  of  passengers 
to  manage  its  trains,  boats  or  vehicles  is  perhaps  the  most  im- 
portant of  all.  Eailroad  trains  that  are  driven  through  the 
country  at  a  high  rate  of  speed,  governed  and  directed  by  the 
company's  servants,  and  carrying  hundreds  and  thousands  of 
human  beings;  the  immense  lines  of  boats  that  plough  the  ocean 
under  the  management  of  the  servants  and  agents  of  the  great 
carrier  companies,  but  evidence  the  justice  and  necessity  of  the 
rule  of  law  that  holds  them  to  the  utmost  care  and  foresigrht  — 
that  highest  degree  of  diligence  and  prudence  which  human 
foresight  will  suggest;  a  diligence  and  care  that  is  commensu- 
rate with  the  dangerous  and  important  business  that  is  being 
carried  on.^  "And  it  has  been  held  that  public  policy  requires 
that  a  carrier  should  be  held  to  the  greatest  possible  degree  of 
care  and  diligence,  and  that  the  particular  safety  of  passengers 
should  not  be  left  to  the  support  or  chance  of  the  negligence 
of  a  careless  agent."  ^ 

§  618.  The  duty  of  passengers. —  Duties  and  responsibilities 
rest  not  alone  upon  the  carrier,  but,  as  has  been  suggested,  the 
passenger  has  duties  that  are  incumbent  upon  him.  He  is  an  in- 
telligent being  endowed  with  faculties  that  when  properly  used 
assist  him  to  shun  danger  and  avoid  its  consequences.  These 
faculties  he  must  exercise.  He  cannot  negligently  be  the  cause 
or  contribute  to  the  cause  of  the  injury.  From  him  is  required 
at  least  ordinary  diligence.  He  must  not  occupy  dangerous 
and  unusual  places  upon  the  carrier's  conve3'ance  — places  that 
an    ordinarily  prudent   man  would  not   occupy;    as,  for   ex- 

iRailwayCcv.  Stacey,G8  Miss.  463.  or  highest  degree  of  care  and  dili- 

2  In  the  absence  of  special  contracts  gence  for  the  safety  of  passengers 

carriers  are  required  to  carry  pas-  that  is  consistent  with  tlie  mode  of 

sengers  as  safely  as  human  foresight  conveyance  employed."    North  Chi- 

and    reasonable    care    will    permit,  cago  Street  Ry.  Co.  v.  Cook,  145  III. 

Ryan  v.  Gilmer,  2  Mont.  518,  25  Am.  551. 

Rep.   714.     "  Carriers  of  passengers        ^  Bryan  v.  Pacific  Ry.  Co.,  33  Mo. 

are  held  to  the  exercise  of  the  utmost  App.  828. 

629 


§  618.]  OAEKIEKS    OF   PASSENGEE3.  [pAET   VI. 

ample,  riding  upon  the  bumpers  between  freight  cars,  under 
the  cars  upon  the  framework,  on  the  top  of  the  cars,  or,  in 
some  cases  upon  the  platform  or  as  a  stowaway  on  a  steamboat, 
or  in  any  such  like  places.  His  duty  is  to  observe  the  ordinary 
and  reasonable  regulations  of  the  carrier,  and  failing  to  do 
so,  the  carrier  may  be  relieved  of  liability,  even  though,  the 
injury  occurred  by  reason  of  negligence  on  his  part. 

630 


i 


CHAPTER  III. 


THE  PASSENGER  CAERIER'S  LIABILITY. 


L  General,  Principles  Governing 
Liability. 


§  619. 
620. 
621. 

622. 

623. 
624. 


626. 
627. 


The  purpose  of  the  chapter. 

The  basis  of  the  liability. 

Diligence  m  the  employment 
of  servants. 

Safe  and  sufficient  means  of 
transportation. 

Passenger  elevators. 

Bound  to  adopt  most  ap- 
proved machinery. 

Latent  defects. 

English  rule. 

Defects  discoverable  by 

manufacturer. 


IL  Liability  Growing  Out  of  Duty 
TO  Passenger  While  in  Tran- 
sit. 

628.  The  degree  of  care  required. 

629.  Depots  —  Waiting-rooms  — 

Approaches  and  exits  from 
premises  and  vehicles. 

630.  Same  subject. 

631.  Overloading  and  overcrowd- 

ing vehicles. 

632.  Liability  of  carrier  for  abuse 

of  passengers. 

633.  Fares  —  Tickets  —  Contracts 

for  carriage. 

634.  Where  the  carrier  or  agent  is 

at  fault. 

635.  Exhibition  and  surrender 

of  tickets. 

636.  Lost  or  mislaid  tickets. 

637. Stop-over  tickets  — Time 

limit — Train  limit,  etc. 

638.  Tickets  over  connecting  lines. 

639.  Delayed  by  wreck  or  by 

the  fault  of  the  carrier. 

63 


§  640.  Tickets,  passes  and  other 
transportation  fraudulently 
obtained  or  fraudulently 
used. 

641.  Sleeping-car  companies. 

642.  Not  liable  as  innkeepers. 

III.  Ejection  of  Passengers  and 

Intruders  from  the  Vehicle 

OF  the  Carrier. 

The  right  — The  cause  — The 
manner  —  By  whom. 

The  causes  numerous. 

Passenger's  reliance  upon 

statements  and  promises  of 
servants  and  agents  of  the 
carrier. 

Tendering  fare  to  avoid  ejec- 
tion. 

The  manner  of  ejecting. 

648.  The  condition  of  the  passenger 
must  be  taken  into  account. 


643. 

644. 
645. 


646. 


647 


IV.  When  the  Carrier  is  Excused. 

649.  When  caused  by  the  act  of 

God. 

650.  The  public  enemy. 

651.  Contributory  negligence. 
052.  Strangers,  trespassers,  in- 
truders. 

653.  Failui'e  to  warn  passen- 
gers of  danger. 

054.  A  question  of  fact  for  the 

jury  or  of  law  for  the  court. 

655.  Whether  a  question   of 

law  or  fact. 

656.  Same  subject. 

657.  When  excused. 

058.  Failure  to  perform  contract  of 
carriage  within  stipulated 
or  reasonable  time. 


§§  G19-621,]  CARRIEKS    OF    PASSENGEKS.  [PART    VI. 

§  610.  The  purpose  of  the  chapter. —  The  discussion  of  the 
liability  of  the  passenger  carrier  takes  on  so  many  different 
phases  that  it  seems  necessary  to  divide  the  subject  into  the 
several  sections  adopted  for  its  consideration:  (1)  General 
principles  governing  the  liability.  (2)  Liability  growing  out 
of  duty  to  passengers  while  in  transit.  (3)  Ejection  of  passen- 
gers and  intruders  from  the  vehicle  of  the  carrier.  (4)  When 
the  carrier  is  excused. 

I. 

General  PRI^^:;IPLES  Governing  the  Liability. 

§  620.  The  basis  of  the  liability.— The  basis  of  the  liabil- 
ity of  the  passenger  carrier  is  his  failure  in  the  particular  case 
to  perform  his  legal  duty  which  results  in  the  injury  or  dam- 
age. But  the  liability  resulting  from  such  failure  is  often 
modified,  and  may  be  said  to  often  depend  upon  the  failure  of  the 
passenger  to  do  his  duty  by  e^cercisihg  that  ordinary  care  in 
avoiding  the  injury  which  the  law  requires  of  him.  Contributory 
negligence  on  the  part  of  the  passenger  is  a  defense  which  the 
carrier  may  successfully  make  in  some  cases,  as  we  shall  see, 
but  there  are  other  duties  resting  upon  the  carrier  to  which  this 
defense  cannot  be  made. 

§621.  Diligence  in  the  employment  of  servants. —  The 
duties  of  the  passenger  carrier  are  veiy  generally  performed  by 
servants  whom  he  employs.  The  traveling  public  are  in  the 
hands  of  these  servants,  and  constantly,  and  almost  entirely, 
depend  upon  their  skill,  foresight  and  diligence  for  safe  trans- 
portation. As,  for  example,  the  train  dispatcher,  with  his  crew  of 
assistants  at  the  telegraph  key,  directs  the  movements  of  trains; 
the  engineer,  though  ever  so  watchful,  depends  almost  entirely 
upon  the  orders  furnished  him  directing  the  running  of  his 
train;  by  them  he  drives  his  engine  through  the  day  or  the 
night,  drawing  its  trainload  of  passengers;  the  conductor,  the 
brakeman,  the  trackmen,  station  agents  and  switchmen  all  are 
servants  of  the  carrier  companv  employed  for  this  veiy  dan- 
gerous and  hazardous  business.  The  drivers  of  stage-coaches 
over  mountain  passes  or  through  dark  ravines  by  day  and  by 
night,  where  a  turn  to  the  right  or  the  left  would  dash  the 
coach  and  passengers  down  the  precipice  or  result  in  great 
danger;  servants  who  stand  watch  upon  the  steamboat  or  at 

633 


en.  III. J  THE   PASSENGER   OAKKIEK's   LIABILITY.  [§  621. 

the  wheel,  and  who  direct  its  course  through  storm  and  bois- 
terous seas, — all  these  are  servants  of  the  great  carrier  companies 
selected  and  put  into  these  responsible  positions  by  them. 
Public  policy  demands,  the  interests  of  humanity  demand,  that 
the  carrier  should  be  held  to  a  hioh  decree  of  diligence  in  the 
selecting  of  these  servants.  He  must  know,  at  least  have  a  rea- 
sonable assurance,  that  they  are  competent  to  perform  the  duties 
that  are  laid  upon  them,  for  disasters  resulting  in  the  loss  of 
life  of  passengers  who  have  intrusted  themselves  to  the  carrier 
for  transportation  are  inexcusable  when  caused  by  the  incompe- 
pent  and  reckless  management  of  the  carrier's  vehicle.  In  an 
early  case  in  the  supreme  court  of  the  United  States  it  was 
said  by  Mr.  Justice  Grier:  ^  "When  carriers  undertake  to  con- 
vey persons  by  the  powerful  but  dangerous  agency  of  steam, 
public  policy  and  safety  requires  that  they  beheld  to  the  great- 
est possible  care  and  diligence;  and  whether  the  consideration 
for  such  transportation  be  pecuniary  or  otherwise,  the  personal 
safety  of  the  passenger  should  not  be  left  to  the  negligence  of 
careless  agents.  Any  negligence  in  such  cases  may  well  deserve 
the  epithet  of  '  gross.'  " 

The  same  rule  applies  to  proprietors  of  stage-coaches,  and  in 
Shafer  v.  Gilmer'^  the  court  say:  "  The  law  compels  stage  pro- 
prietors to  furnish  prudent  and  skilful  drivers,  and  holds  them 
liable  for  any  injury  that  a  passenger  may  receive  on  account 
of  any  negligence  in  this  particular."  And  in  Tullerv.  Talhof^ 
it  was  held  that  the  proprietors  of  a  stage-coach  should  furnish 

1  Philadelphia,  etc.    Co.  v.  Derby,  there   was    no    negligence    whatso- 

14  How.  (U.  S.)  483.    Farish  &  Co.  v.  ever." 

Reigle,  11  Grat.  (Va.)  697— a  stage-  213  Nqv.  330,338;  Sales  v.  Western 

coach  case  where  the  question  is  re-  Storage  Co.,  4  Iowa,  .'547;  Redfield  on 

viewed  —  held:  "Carriers  of  passen-  Carriers,  sec.  340;  Angell on  Carriers, 

gers  bystagesare liable forinjuriesre-  sec.  569;  McKinney  v.  Neil,  1  McL. 

suiting  from  the  slightest  negligence  540. 

on  the  part  of  the  driver  or  proprie-  3  23  111.  357.  Frink  &  Co.  v.  Coe,  4  G. 
tor  of  the  stage,  and  they  are  bound  Greene  (Iowa),  555,  held  that  "stage- 
to  use  the  utmost  care  and  diligence  coach  proprietors  who  carry  passen- 
of  cautious  persons  to  prevent  inju-  gers  forcompeusation  are  responsible 
ries  to  the  passengers.  When  a  pas-  for  all  accidents  and  injuries  happen- 
senger  is  injured  by  the  upsetting  of  ing  to  passengers  which  might  have 
the  coach,  the  presumption  is  that  it  been  prevented  by  human  care  and 
occurred  by  the  negligence  of  the  foresiglit,  and  they  are  consequently 
driver,  and  the  burden  of  proof  is  on  bound  to  furnish  good  and  strong 
proprietor  of  the  coach  to  show  that  coaches  and  harness,  gentle  and  well- 

633 


§  Cr2'2.]  CARRIERS    OF    PASSENGERS.  [PAKT   VI, 

competent  and  careful  drivers,  and  if  a  stranger  shall  be  sub- 
stituted by  them,  or  their  agents,  in  lieu  of  a  regular  driver, 
the  proprietors  are  accountable  for  bis  neglect  or  incompetency, 
and  that  the  carrier  of  passengers  is  required  to  do  all  that 
human  care,  vigilance  and  foresight  reasonably  can,  under  the 
circumstances,  in  view  of  the  character  and  mode  of  convey- 
ance adopted,  to  prevent  accident  to  passengers. 

§  622.  Safe  and  sufficient  means  of  transportation. —  As 
we  have  seen,  it  is  incumbent  upon  the  carrier  of  passengers 
to  use  safe  and  suitable  vehicles,  roadways,  motive  power 
and  appliances.  "It  is  the  duty  of  the  carrier  company,  in 
this  particular,  to  use  the  best  mechanical  appliances  and  tO' 
exercise  the  highest  degree  of  prudence  and  skill  in  determin- 
ing that  all  their  appliances  are  safe  for  the  purpose  of  trans- 
portation, and  in  case  an  accident  results  from  a  failure  to  usj 
such  appliances,  or  to  exercise  the  proper  degree  of  care  and 
skill,  they  are  liable  in  damages." ' 

The  carrier  and  the  passenger  do  not  occupy  the  same  vantage 
ground  in  this  matter.  The  carrier  undertakes  to  safely  trans- 
port the  passenger,  and  impliedly  says  to  him:  take  passage  in 
this  vehicle;  it  is  perfectly  safe  and  suitable  for  the  purpose. 
The  vehicle  is  known,  or  ought  to  be,  by  the  carrier.  He  is 
supposed  to  be  skilled  not  only  in  the  matter  of  operating  but 
in  selecting  the  means  of  conveyance.  The  passenger  cannot 
inspect  it  and  determine  its  sufficiency;  he  is  entirely  depend- 
ent upon  the  carrier,  and  so  the  law  requires  of  the  carrier  the 
very  highest  degree  of  diligence  and  foresight;  and  while  the 

broke   horses,  skilful    and  prudent  fendant,  it  was  held  that  it  was  no 

drivers,  and  the  smallest  degree  of  defense  that  the  defendant  had  no 

negligence  in  these  particulars  will  knowledge    of  the  watchman's  in- 

render  such  pi-oprietors  liable  for  any  competency  until  after  the  accident ; 

injury  to  passengers.     Where  a  pas-  and  further,  a  passenger  is  entitled 

senger  has   been   injured  in  couse-  to  a  safe  transit,  and  the  carrier  is 

quence  of  the  gross  negligence  of  a  bound  to  the  highest  degree  of  rear 

stage-coach  proprietor,  by  the  em  ploj'-  sonable  cara" 

mentof  a  known  drunken  driver,  the        ^A  railroad  company  is  not  relieved 

injured  party  may  be  entitled  to  ex-  of  liability   because    its    employees 

emplary  damages."   In  G.  R.  &  L  Ry.  acted  with  i-easonable  prudence  after 

Co.  V.   Ellison,  117  Ind.   234:  "In  an  discovering  a   danger   which    their 

action  by  a  passenger  to  recover  for  negligence  contributed  in  bringing 

injuries    received    in    an    accident  about.  Kellow  v.  Cent,  Iowa  Ry.  Co., 

caused   by   negligence  of  a  watch-  68  Iowa,  478;   Pershing  v.  Railroad 

man  in  the  employment  of  the  de-  Co.,  71  Iowa,  567. 

634 


CII.   III.] 


THE    PASSENGER    CARRIER  S    LIABILITY. 


[§  022 


carrier  cannot  be  held,  as  in  the  case  of  carriage  of  goods,  to 
warrant  the  means  of  conveyance  to  be  sufficient  and  adequate, 
if  the  defect  to  which  the  injury  is  attributable  was  such  that 
it  could  have  been  discovered  by  the  most  careful  and  coni4)e- 
tent  inspection,  b}^  that  "  utmost  care  and  diligence  which 
human  prudence  and  foresight  will  suggest,"  the  carrier  will 
be  liable.^ 

Judge  Cooley  states  the  rule  as  to  carriers  of  passengers  to 
be:  Such  carrier  "only  undertakes  that  he  will  carry  them 
without  negligence  or  fault.  But  as  there  are  committed  to 
his  charge  for  the  time  the  lives  and  safety  of  persons  of  all 
ages  and  of  all  degrees  of  ability  for  self-protection,  and  as 
the  slightest  failure  in  watchfulness  may  be  destructive  of  life 
or  limb,  it  is  reasonable  to  require  of  him  the  most  perfect 
care  of  prudent  and  cautious  men,  and  his  undertaking  and  lia- 
bility as  to  his  passengers  goes  to  this  extent:  that,  as  far  as 
human  foresight  and  care  can  reasonably  go,  he  will  transport 
them  safel3^"  ^ 


1  In  Pennsylvania  Ry.  Co.  v.  Roy, 
102  U.  S.  451,  457,  it  was  held  that  the 
carrier  "is  responsible  for  injuries 
received  by  passengers  in  the  course 
of  their  transportation  which  might 
have  been  avoided  or  guarded  against 
by  the  exercise,  upon  his  part,  of  ex- 
traordinary vigilance  aided  by  the 
highest  skill.  And  this  caution  and 
prudence  must  necessarily  be  ex- 
tended to  all  the  agencies  or  means 
employed  by  the  carrier  in  the  trans- 
portation of  the  passenger.  Among 
the  duties  resting  upon  him  is  the 
important  one  of  providing  cars  or 
vehicles  adequate,  that  is.sufficientiy 
secure  as  to  strength  and  other 
requisites  for  the  safe  conveyance  of 
passengers.  That  duty  tlie  law  en- 
forces with  great  strictness.  For 
the  slightest  negligence  or  fault  in 
this  regard,  from  which  injury  re- 
sults to  the  passenger,  the  carrier  is 
liable  in  damages.  .  ,  .  The  duty 
of  the  railroad  company  was  to  con- 
vey the  passenger  over  its  line,  and 
in  performing  that  duty    it  could 


not,  consistently  with  the  law  and 
the  obligations  arising  out  of  the 
nature  of  its  business,  use  cars  or 
vehicles  whose  inadequacy  or  insuf- 
ficiency for  safe  conveyance  was  dis- 
coverable upon  the  most  careful  and 
thorough  examination."  Steamboat 
New  World  v.  King,  16  How.  (U.  S.) 
469;  Railroad  Co.  v.  Pollard,  22  Wall. 
(U.  S.)  341. 

2  Cooley  on  Torts  (2d  ed.),  768,  769. 
See  cases  cited  on  page  769.  In  Tay- 
lor V.  Grand  Trunk  Ry.  Co.,  48  N.  H. 
304,  it  was  said:  "Upon  grounds  of 
public  policy  also,  the  carrier  of  pas- 
sengers is  bound  to  exercise  the 
highest  degree  of  care  and  diligence. 
To  his  diligence  and  fidelity  are  in- 
trusted the  lives  and  safety  of  large 
numbers  of  human  beings;"  and 
when  passengers  are  carried  by 
steam,  the  demand  for  the  utmost 
skill  and  diligence  is  especially  re- 
quired, for  then,  in  consequence  of 
the  great  speed,  the  hazard  to  life 
and  limb  is  largely  increased. 


635 


§  623.]  CAKRIEES    OF    PASSENGERS.  [PAET   YI. 

§  623.  Pjissoiiger  elevators. —  The  same  degree  of  re- 
sponsibility attaches  to  those  controlling  and  running  pas- 
senger elevators.  "Persons  who  are  lifted  by  elevators  are 
subjected  to  great  risks  to  life  and  limb.  They  are  hoisted 
vertically,  and  are  unable,  in  case  of  the  breaking  of  the  ma- 
chinery, to  help  themselves.  The  person  running  such  eleva- 
tor must  be  held  to  undertake  to  raise  such  persons  safely,  as 
far  as  human  care  and  foresight  will  go.  The  law  holds  him 
to  the  utmost  care  and  diligence  of  Very  cautious  persons,  and 
responsible  for  the  slightest  neglect.  Such  responsibility  at- 
taches to  all  persons  engaged  in  employments  where  human 
beings  submit  their  bodies  to  tli'eir  control,  by  which  their 
lives  or  limbs  are  put  at  hazard,  or  where  such  employment  is 
attended  with  danger  to  life  or  limb.  The  utmost  care  and 
diligence  must  be  used  by  persons  engaged  in  such  employ- 
ments to  avoid  injury  to  those  they  carry.  The  care  and  dili- 
gence required  is  proportioned  to  the  danger  to  the  persons 
carried.  In  proportion  to  the  degree  of  danger  to  others  must 
be  the  care  and  diligence  to  be  exercised;  where  the  danger  is 
great,  the  utmost  care  and  diligence  must  be  employed.  In 
such  cases  the  law  requires  extraordinary  care  and  diligence. 
We  know  of  no  employment  where  the  law  should  demand  a 
higher  degree  of  care  and  diligence  than  in  the  case  of  the 
persons  using  and  running  elevators  for  lifting  human  beings 
from  one  level  to  another.  The  danofer  of  those  being-  raised 
is  great.  When  persons  are  injured  by  the  giving  way  of  the 
machinery  the  hurt  is  always  serious,  frequently  fatal;  and 
the  law  does  and  should  bind  persons  so  engaged  to  the  high- 
est degree  of  care  practicable  under  the  circumstances.  It 
would  be  injustice  and  cruelt}'  to  the  public  in  courts  to 
abate  in  any  degree  from  this  high  degree  of  care.  The  aged, 
the  helpless  and  the  infirm  are  daily  using  these  elevators. 
The  owners  make  profit  by  these  elevators,  or  use  them  for  the 
profit  they  bring  to  them.  The  cruelty  from  a  careless  use  of 
such  contrivances  is  likely  to  fall  on  the  weakest  of  the  com- 
munity. •  All,  including  the  strongest,  are  without  the  means 
of  self-protection  upon  the  breaking  down  of  the  machinery. 
The  law,  therefore,  throws  around  such  persons  its  protection 
by  requiring  the  highest  care  and  diligence.  The  carrier  of 
passengers  is  under  obligations  to  use  the  utmost  care  and 

636 


CH.  III.]  THE    PASSENGER   CAKEIEr's    LIABILITY,       [§§  624,  625. 

diligence  in  providing  safe,  suitable  and  sufficient  vehicles  for 
the  conveyance  of  his  passengers."  ^ 
§  624.  Bound  to  adopt  most  approved  machinery. — 

It  is  said  that  railroads  and  other  carriers  of  passengers  must 
keep  pace  with  science,  art,  and  modern  improvements  in  their 
application  to  the  carriage  of  passengers.-  This,  however,  does 
not  mean  that  they  are  bound  to  adopt  any  mere  speculative  or 
untried  experiments;  they  are  not  responsible  for  the  unknown 
as  well  as  the  new,  but  they  should  adopt  such  improved 
and  tried  appliances  as  have  been  tested  and  found  useful,  and 
which  materially  contribute  to  the  safety  of  the  passenger.^ 
As  was  said  by  Mr.  Justice  Church:  "  It  is  established  that  the 
carrier  of  passengers,  especially  in  vehicles  and  conveyances 
propelled  by  steam  where  the  consequences  of  an  accident  from 
defective  machinery  are  almost  certainly  fatal  to  human  life,  is 
bound  to  use  every  precaution  which  human  skill,  care  and 
forseight  can  provide,  and  to  exercise  similar  care  and  fore- 
sight in  ascertaining  and  adopting  new  improvements  to  secure 
additional  protection."*  But  it  has  been  held  that  while  rail- 
road companies,  as  common  carriers,  are  bound  to  have  such 
vehicles  and  machinery  for  the  transportation  of  goods  as  the 
improvements  known  to  practical  men  and  tested  by  practical 
use  may  suggest,  they  are  not  bound  to  take  every  possible 
precaution  which  the  highest  scientific  skill  might  suggest,  nor 
to  adopt  mere  speculative  and  untried  experiments.^ 

§  625.  Latent  defects. —  Where  the  injury  is  the  result 

of  such  a  latent  defect  in  the  appliances  or  machinery  of  the 
carrier  that  no  degree  of  skill,  care  or  foresight  can  detect  it, 
the  carrier  is  not  liable,  for  there  is  no  lack  of  diligence  upon 

^Treadwell    v.   Whittier,  80    CaL  injury,  for  that  would  be  inconsistent 

574,  5  L.  R.  A.  498;  Baltimore  &  H,  with  the  cheapness  and  speed  which 

Ry.   Co,   V.   State,  29  Md.   253;   Va,  are  among  the  chief  objects  of  rail-' 

Cent,  Ry.  Co,  v.  Sawyer,  15    Grat.  waj'  traveling.     Their  care  is  to  be 

(Va.)  230;  Kelly  v.  N.  Y.  &  S.  B.  Ry.  exercised  in  relation  to  such  matters, 

Co.,  109  N.  Y.  44;  Northern  Pac.  Ry.  and  in  such  ways,  as  are  appropriate 

Co.  V.  Herbert,  116  U.  S.  051.  tothebusinessthey  have  undertaken, 

2Meler  V.  Pa.  Ry,  Co.,  64Pa.  St.  225,  to  afford  proper  and  reasonable  se- 

3  Barron  v.  East  Boston  Ferry  Co.,  curities  against  danger." 

11  Allen  (Mass.),  312.     In  Warren  v.  <  Caldwell   v.  New  Jersey  Steam- 

Fitchburg,  etc.  R.  Co.,  8  Allen,  227,  boat  Co.,  47  N.  Y.  282. 

the  court  say:  "They  are  not  to  take  'VSteinweig  v.  Erie  Ry.  Co.,  43  N. 

every  possible  precaution  to  prevent  Y.  123. 

637 


§  025.]  OAREIEKS    OF    PASSENGERS.  [PA.RT    VI. 

his  part;  he  cannot  be  shown  to  have  been  guilty  of  a  de- 
gree of  negligence  sufficient  to  warrant  a  recovery.  Where 
the  injury  was  caused  by  the  breaking  of  an  axle  of  a  stage- 
coach, and  no  negligence  could  be  shown,  it  was  held,  if  the 
axletree  was  sound  as  far  as  human  eye  could  discover,  the  de- 
fendant was  not  liable.^  And  where  it  appeared  that  the  break- 
ing of  the  axletree  of  a  coach  resulted  in  an  accident,  and  that 
the  breaking  occurred  because  of  a  very  small  flaw  surrounded 
by  sound  iron,  which  could  not  have  been  discovered  by  the 
most  careful  external*  examination,  it  was  said  by  the  court: 
"Where  the  accident  arises  from  a  hidden  and  internal  defect, 
which  a  careful  and  thorough  examination  would  not  disclose, 
and  which  could  not  be  guarded  against  by  the  exercise  of  a 
sound  judgment  and  the  most  vigilant  oversight,  then  the  pro- 
prietor IS  not  liable  for  the  injury,  but  the  misTortune  must  be 
borne  by  the  sufferer,  as  one  of  that  class  of  injuries  for  which 
the  law  can  afford  no  redress  in  the  form  of  a  pecuniary  recom- 
pense."^ And  where  a  plaintiff  while  a  passenger  on  the  de- 
fendant's road  was  injured  by  an  accident  which  was  caused  by 
the  breaking  of  a  tire  of  one  of  the  wheels  of  the  carriao^e  in 
which  he  was  seated,  and  it  was  shown  that  such  breaking  was 
owing  to  an  air  bubble,  which  could  neither  be  discovered  in 
the  course  of  manufacture  nor  afterwards,  and  there  was  no 
negligence  proven  on  the  part  of  either  the  manufacturer  or 
the  railroad  company,  it  was  held  that  the  defendant  was  not 
liable.' 

It  will  be  noticed  from  the  line  of  decisions  that  it  is  not 
every  latent  defect  that  will  excuse  the  carrier;  it  is  only  such 
a  latent  defect  as  no  reasonable  degree  of  human  skill  and  fore- 
sight could  guard  against.'  So,  carriers  are  held  to  a  strict  in- 
spection; they  are  required  to  make  vigilant  search  for  any 
imperfections  or  defects  that  might  occasion  an  accident.  If 
the  defect  could  have  been  discovered  by  the  most  careful  and 
thorough  examination,  or  if  any  certain  or  satisfactory  test  is 
known  which  is  within  reach  of  the  carrier,  and  he  fails  to 
apply  suc3h  test,  but  relies  upon  a  test  which  is  clearly  insuffi- 
cient, the  carrier  would  be  liable.* 

1  Christy  v.  Griggs,  2  Camp.  79.  2  Q.  B.  412;  affirmed,  20  L,  T.  (N.  S.) 

2Ingalls  V.  Bills,  9  Mete.  (Mass.)  1,    628. 
43  A  m.  Dec.  346.  *  Hadley  v.  Cross,  34  Vt.  586 ;  Ingalls 

SReadbeadv.  MidlandRy.Co.,L.R.     v.  Bills,  9  Mete.  (Masa)  1;  Edwards 

638 


€11.   HI.]  THE    PASSENGER    CAKRIEk's    LIABILITY.       [§§  626,627. 

§626.  Eng-lish  rule. —  Until  the  ca&e  of  Beadhead  v. 

Midland  By.  Co.,  above  cited,  the  English  courts  had  held 
that  a  latent  defect  would  not  excuse  the  carrier,  but  that  if 
the  injury  occurred  from  any  defect  in  the  appliances  of  the 
carrier,  its  vehicles  or  machinery,  the  carrier  was  liable,  rest- 
ing its  opinion  upon  the  ground  that  it  was  a  duty  of  the  carrier 
to  furnish  lit  and  safe  appliances,  and  that  a  failure  to  do  so  ren- 
dered him  liable.  The  leading  English  case  is  that  of  Sharp  v. 
Grey}  where  the  court  virtually  held  that  the  carrier  war- 
ranted the  sufficiency  of  his  vehicle;  but  since  the  holding  in 
Readhead  v.  Midland  Ry.  Co.  it  may  be  said  that  the  English 
and  American  rule  is  the  same,  and  that  carriers  are  not  liable 
for  injuries  occasioned  by  latent  defects  in  their  appliances  or 
vehicles  w^hich  cannot  by  any  human  care  or  skill  have  been 
detected  or  prevented,  but  that  it  is  the  duty  of  the  carrier  to 
apply  every  known  practical  test  for  the  discovery  of  such 
defects. 

§627.  Defects  discoverable  by  manufacturer.— It 

has  been  held  by  a  line  of  authority,  and  perhaps  it  may  be 
said  to  be  the  weight  of  authority,  that  the  carrier  is  liable  for 
an  injury  which  is  the  result  of  defects  in  the  appliances,  ve- 
hicles or  machinery  which,  by  the  inspection  usually  given  to 
such  appliances  after  they  are  purchased  and  put  in  service, 
could  not  have  been  discovered,  no  matter  how  thoroug-h  or 
competent,  but  which  could  have  been  discovered  and  known 
to  the  manufacturer  by  the  application  of  reasonable  tests 
known  to  skilful  manufacturers,  and  which  ought  to  be  made 
before  delivering  the  work.  This  rule  may  be  said  to  be  based 
upon  the  theory  that  the  obligation  of  the  carrier  is  to  furnish 
suitable  and  lit  conveyance  to  the  passenger,  and,  as  has  been 
«hown,  if  by  the  exercise  of  the  highest  degree  of  skill  and 
prudence  defects  cannot  be  discovered,  he  may  be  excused,  but 
not  otherwise.  So  the  manufacturer  whom  the  carrier  calls 
upon  to  furnish  conveyances,  appliances  and  machinery  for 
carrying  passengers  is  but  the  agent  or  servant  of  the  carrier, 
and  for  any  negligence  upon  his  part  in  receiving  and  furnish- 
ing such  conveyance,  machinery  or  appliances  resulting  in  in- 

V.  Lord,  49  Me.  279;  Texas  &  P.   R.     170,  17  Am.  St.  Rep.  639,  44  Am.  & 
Co.  V.  Hamilton,  66  Tex.  95;  Palmer     Eng.  R.  Cases,  298. 
V.  Delaware,  etc.  Canal  Co.,  120  N.  Y.        i  9  Bing.  457. 

639 


§   C27.]  CAEEIERS    OF    PASSENGERS.  [PAET    VI. 

jury  to  the  passenger  the  carrier  is  answerable.      In  other 
words,  for  the  failure  of  the  manufacturer  to  discover  any  de- 
fects which  might  be  detected  by  the  application  of  the  best 
known  tests  of  skilful  manufacturers,  and  which  occasioned 
injury  to  the  passenger,  the  carrier  would  be  liable.     A  lead- 
ing case  upon  this  subject  and  holding  to  this  rule  is  that  of 
Hageman  v.  Western  R.  Corp.^  w^here  Chief  Justice  Gardner  in 
discussing  this  doctrine  said :  "  The  substance  of  the  charge  was 
that,  although  th^  defect  was  latent  and  could  not  be  discov- 
ered by  the  most  vigilant  external  examination,  yet,  if  it  could 
be  ascertained  by  a  known  test  applied  either  by  the  manufact- 
urer or  the  defendant,  the  latter  was  responsible.     In  these  in- 
structions there  was  no  error."     And  after  quoting  from  the 
opinion  in  Ingalls  v.  Bills,  where  it  was  held  that  a  carrier 
was  not  liable  for  an  injury  which  resulted  in  the  breaking 
of  the  axle  of  a  stage-coach,  the  fracture  being  occasioned  by 
reason  of  a  defect  which  was  entirely  surrounded  by  iron  and 
therefore  latent,  the  chief  justice  further  says:  "I  concur  in 
that  decision  in  the  particular  case  presented;  but  the  learned 
judge  did  not  intimate  '  that  a  sound  judgment  and  the  mos^ 
vigilant  oversight '  would  be  evidenced  by  the  adoption  of  the 
same  methods  of  examination  in  the  case  of  a  stage-coach 
and  a  car  for  the  express  train  of  a  railroad.     The  mode  of 
construction,  the  purposes  to  be  subserved,  and,  above  all,  the 
probable  consequences  of  a  hidden  defect  in  the  two  cases, 
are  altogether  different.     It  might  as  plausibly  be  urged  that 
a  chain  for  agricultural  purposes  and  the  cable  of  a  ship  of 
the  line  should  be  subjected  to  the  same  tests,  because  both 
were  chains  and  each   manufactured   of  the  same  material. 
Keeping  the  distinction  indicated  in  view,  the  charge  was  suffi- 
ciently favorable  to  the  defendant.     ...     It  was  said  that 
carriers  of  passengers  are  not  insurers.     This  is  true.     That 
they  were  not  required  to  become  smelters  of  iron,  or  manu- 
facturers of  cars,  in  the  prosecution  of  their  business.     This 
also  must  be  conceded.    What  the  law  does  require  is  that  they 
shall  furnish  a  sufficient  car  to  secure  the  safety  of  their  pas- 
sengers by  the  exercise  of  the  'utmost  care  and  skill  in  its 
preparation.'   They  may  construct  it  themselves,  or  avail  them- 
selves of  the  services  of  others;  but  in  either  case  they  engage 

1 13  N.  Y.  9,  64  Am.  Dec.  517. 
640 


CH.  III.]  THE    PASSENGEK   CAREIEk's    LIABILITY.  [§  627. 

that  all  that  well  directed  skill  can  do  has  been  done  for  the 
accomplishment  of  this  object.  A  good  reputation  upon  the 
part  of  the  builder  is  very  well  in  itself,  but  ought  not  to  be 
accepted  by  the  public,  or  the  law,  as  a  substitute  for  a  good 
vehicle.  What  is  demanded,  and  what  is  undertaken  by  the 
corporation,  is  not  merely  that  the  manufacturer  had  the  req- 
uisite capacity,  but  that  it  was  skilfully  exercised  in  the  par- 
ticular instance.  If  to  this  extent  they  are  not  responsible, 
there  is  no  security  for  individuals  or  the  public."  ^ 

A  contrary  doctrine,  however,  is  held  by  the  supreme  court 
of  Tennessee  and  also  by  the  supreme  court  of  Michigan.'  The 
opinion  of  the  Michigan  court,  by  Campbell,  C.  J.,  is  strong  in 
its  logic  and  reasoning.  He  says:  "It  was  held  by  the  court 
below  that  no  diligence  or  care  in  the  railroad  company  could 
exempt  them  from  want  of  care  in  the  manufacturers  of  the 
cars  and  axles.  This  doctrine  is,  we  think,  entirely  incorrect. 
Carriers  of  freight  are  liable,  whether  careful  or  not,  for  any 
act  or  damage  not  caused  by  the  act  of  God  or  of  the  public 
enemy.  Their  liability,  therefore,  does  not  arise  from  negli- 
gence or  want  of  care.  It  arises  from  their  failure  to  make  an 
absolutely  safe  carriage  and  delivery,  which  they  insure  by 
their  undertaking.  The  analogies  of  carriers  of  freight  have 
nothing  to  do  with  passenger  carriers.  These  are  liable  only 
when  there  has  been  actual  negligence  of  themselves  or  their 
servants.  If  they  exercise  their  functions  in  the  same  way 
with  prudent  railway  companies,  generally,  and  furnish  their 
road  and  run  it  in  the  customary  manner,  which  is  generally 
found  and  believed  to  be  safe  and  prudent,  they  do  all  that  is 
incumbent  upon  them.     This  general  doctrine  the  court  below 

iTreadwellv.  Whittier,  80Cal.  574.  a  collision,  or  a  defect  in  the  ma- 
in Philadelphia,  etc.  Co.  v.  Anderson,  chineryor  roadway,  he  is  required,  in 
94  Pa.  St,  851,  it  was  said:  "Where  the  first  place,  to  prove  no  more  than 
for  a  considei'ation  a  railroad  com-  the  fact  of  the  accident  and  the  ex- 
pany  undertakes  to  transport  a  pas-  tent  of  the  injury;  a  prima  facie 
senger  from  one  point  of  its  line  to  case  is  thus  made  out  and  the  onus 
another,  there  arises  an  implied  con-  is  cast  upon  the  carrier  to  disprove 
tract    on  the  part  of  the  company  negligence."' 

that  it  has.  for  that  purpose,   pro-        ^  Nashville,  etc.  Ry.  Co.  v.  Jones,  9 

vided  a  safe  and  sufficient  road  and  Heisk.  (Tenn.)  27;  G.  R.  &  I.  Ry.  Co. 

that  its  cars    are    safe    and  trust-  ▼.  Huntley,  38  Mich.  587, 31  Am.  Rep. 

worthy.     And  where  a  person  is  in-  321. 
jured  by  an  accident  arising  from 

41  641 


§  628,]  CARRIERS    OF    PASSENGERS.  [pART   VI. 

laid  down  very  clearly,  but  qualified  it  so  as  to  make  them  ab- 
solutely responsible  for  the  omissions  or  lack  of  skill  or  atten- 
tion of  the  manufacturers  from  whom  they  made  their  purchases 
of  stock,  however  high  in  standing  and  reputation  as  reliable 
persons.  There  is  no  principle  of  law  which  places  such  manu- 
facturers in  the  position  of  agents  or  servants  of  their  custom- 
ers. The  law  does  not  contemplate  that  railroad  companies 
will,  in  general,  make  their  own  cars  or  engines,  and  they  pur- 
chase them  in  the  market,  of  persons  supposed  to  be  competent 
dealers,  just  as  they  buy  their  other  articles.  All  that  they 
can  reasonably  be  expected  to  do  is  to  purchase  such  cars  and 
other  necessaries  as  they  have  reason  to  believe  will  be  safe 
and  proper,  giving  them  such  inspection  as  is  usual  and  prac- 
ticable as  they  buy  them.  When  they  make  such  an  examina- 
tion, and  discover  no  defects,  they  do  all  that  is  practicable, 
and  it  is  no  neglect  to  omit  attempting  wdiat  is  practicable. 
They  have  a  right  to  assume  that  a  dealer  of  good  repute  has 
also  used  such  care  as  was  incumbent  on  him,  and  that  the 
articles  purchased  of  him  which  seem  right  are  right  in  fact. 
Any  other  rule  would  make  them  liable  for  what  is  not  negli- 
gence, and  put  them  practically  on  the  footing  of  insurers. 
The  law  has  never  attempted  to  hold  passenger  carriers  for 
anything  which  they  could  not  avoid  by  their  own  diligence."  ^ 

II. 

Liability  Growing  Out  of   Duty   to   Passengers  "While  in 

Transit. 

§  628.  The  degree  of  care  required. —  That  same  high  de- 
gree of  care  and  diligence,  "  the  utmost  care  and  diligence 
which  human  prudence  and  foresight  will  suggest,"  is  required 
of  the  carriers  of  passengers  in  operating  the  machinery,  ap- 
pliances and  vehicles  employed  by  them  in  their  business,  and 
this  requirement  rests  upon  every  passenger  carrier, —  the  stage- 
coach proprietor,  the  street-car  operator,  the  railroad  com- 
pany, ferry  companies,  proprietors  of  passenger  elevators, —  all 
who  are  engaged  in  transporting  passengers.  As  has  been  ob- 
served, the  degree  of  diligence  depends  almost  entirely  upon  the 
elements  of  dano^er  that  surround  the  business  in  which  the 


1  Grand  Rapids,  etc.  Ry.  Co.  v.  Huntley,  38  Mich.  537-54a 
643 


J 


CH.  III.]  THE  PASSENGER   CARRIER'S    LIABILITY.  [§  629. 

carrier  is  engaged.  As,  for  example,  the  same  degree  of  dili- 
gence is  not  required  of  the  proprietor  of  a  stage-coach  or  a 
canal-boat  owner  as  would  be  required  of  those  using  steam  or 
electricity  for  motive  power,  and  driving  their  vehicles  at  a 
high  rate  of  speed  through  the  streets  of  crowded  cities,  or 
over  their  tracks  in  the  country;  and  yet  the  law  requires  the 
same  degree  of  diligence,  modified  only  by  the  hazards  and 
dangers  attending  upon  the  particular  undertaking.  Propor- 
tionately to  the  hazards  of  the  business  is  the  degree  of  dili- 
gence and  care  that  is  required. 

§629.  Depots  —  Waiting-rooms  —  Approaches  and  exits 
from  premises  and  vehicles.—  The  carrier  of  passengers  is 
not  held  to  that  high  degree  of  diligence  and  care  in  provid- 
ing and  caring  for  its  depots,  waiting-rooms,  platforms,  docks, 
approaches  and  exits  as  obtains  in  the  operation  of  its  passen- 
ger trains,  boats  or  vehicles.  Its  duty  as  to  the  former  is  to 
provide  a  reasonably  safe  place  for  the  accommodation  of 
those  awaiting  the  arrival  or  departure  of  trains  or  convey- 
ances of  the  carrier,  and  reasonably  safe  approaches  and  exits 
to  and  from  their  vehicles,  taking  such  precaution  for  the 
safety  of  those  using  these  facilities  as  would  be  taken  by  a 
reasonably  prudent  and  cautious  man  under  just  such  circum- 
stances.^ 

1  Kirby  v.  Delaware,   etc.  Co.,  46  be  properly  raised  under  some   cir- 

IS.  Y.  Supp.  777;    Kelly  v.  Manhat-  cumstances,  from  the  nature  of  the 

tan,  etc.  Co.,  112  N.  Y.  443;  Buck  v.  casualty,  which  could  not  arise  or 

Railway  Co.,  134  N.  Y.  589,  81  N.  E.  demand  explanation  in  another.  For 

628;  111.  Cent.  R.  Co.  v.  Hobbs,  58  111.  example,  where  a  passenger  isquietly 

App,   130;    Toledo,    etc.   Ry.    Co.   v.  seated  in  a  car,  and  is  injured  by  a 

Crush,  67  111.  262;  Falls  v.  Railway  collision,  or  a  breakdown,  or  by  the 

Co.,  97  Cal.  114;  Pa.  Ry.  Co.  v.  Mer-  cars  leaving  the  track,  tliere  can  be 

riam,  123   Ind.   415;  Gunderman    v.  no  room  for  any  inquiry  on  the  ques- 

Railway  Co.,  58  Mo.  App.  370;  Lvicas  tion  of  contributive  negligence.  The 

V.  Pa,  Co.,  120  Ind.  205;  Hiatt  v.  Rail-  rule  of  care  and  caution  to  be  ap- 

way  Co.,  96  Iowa,  169,  64  N.  W.  766;  plied  in  any  case  must  properly  be 

Mo.  Pac.   Ry.    Co.    v.    Wortham,   73  one  required  by  the  nature  of  the 

Tex.  75.  The  supreme  court  of  Michi-  case,  and  such  as  the  circumstances 

gan,  in  Mich.  Cent.  Ry.  Co.  v.  Cole-  call  for.     And,  in  considering  prece- 

man,  28  Mich.  440,  447,  say:  "Except  dents,  we  can  never  leave  out  of 

in  a  very  general  way,  the  regula-  view    the     peculiar    circumstances 

tions  which  safety  requires  in  one  whicli  may  or  may  not  require  tlie 

case  do   not  very   closely   resemble  same   conduct  necessary  in  others, 

those  needed  in  another.     It  is  very  Perhaps  as  neat  a  statement  of  this 

plain  that  presumptions  of  fact  may  principle  as  has  been  given  is  found 

643 


§  630.] 


CAERIEKS    OF    PASSENGERS. 


[part  VI. 


§  630.  Same  subject. —  At  what  particular  time  and  place 
the  care  and  diligence  increases  as  the  passenger  enters  upon 
the  premises  of  and  takes  passage  upon  the  vehicle  of  the 
carrier,  or  where  it  lessens  as  the  passenger  alights  from  the 
vehicle  and  leaves  |;he  premises,  it  is  difficult  to  state.  In  de- 
termining this,  reijard  must  at  all  times  be  had  to  the  sur- 
roundings.  For  example,  a  passenger  leaving  a  steamboat 
may  be  in  very  great  peril  in  crossing  the  gang-plank,  and  in 
the  same  peril  in  taking  passage;  the  coach  proprietor  may 
land  his  passengers  in  a  very  unsafe  and  dangerous  place;  the 
railroad  company  may  unload  its  passengers  among  tracks  and 
switches  and  running  engines,  or  upon  a  platform  which  is 
comparatively  safe  and  apart  from  any  of  the  dangers  of  its 


in  Blamires  v.  Lancashire  &  York- 
shire R.  W.  Co.,  L.  R.  8  Exch.  283. 
In  that  case  the  question  was  whether 
a  failure  of  providing  means  of  com- 
munication with  the  persons  in 
charge  could  be  allowed  to  go  to  the 
jury,  and  there  being  evidence  that 
such  means  were  well  known,  and 
that  they  might  have  prevented  the 
mischief,  the  jury  were  allowed  to 
consider  it.  Brett,  J.,  in  giving  the 
reasons  for  his  concurrence  in  that 
view,  said:  'It  is  an  action  for  neg- 
ligence, and  the  plaintiff  is  bound 
to  prove  that  the  railway  company 
have  been  guilty  of  doing  something 
which  a  railway  company  of  ordi- 
nary care  would  not  do,  or  omitting 
to  do  something  which  a  railroad 
company  of  ordinary  care  would  do.' 
And  there  being  evidence  that  such 
precautions  were  customary  among 
companies  of  ordinary  care,  he  was 
of  opinion  the  case  was  one  for  the 
jury.  And  Grove,  J.,  said:  'If  a  par- 
ticular precaution  has  not  been 
hitherto  known  or  used,  or  if  its  use 
is  obscure,  the  omission  of  it  is  not 
negligence;  but  if  it  is  used  to  any 
considerable  extent,  that  changes 
the  case,  and  makes  the  omission 
some  evidence  of  negligence.'  The 
degree  of  care  required  in  any  busi- 
ness  must  be  proportionate  to  its 


nature  and  risks,  and  the  business  of 
railroads  is  one  of  great  risks  and  re- 
quirmg  great  caution.  But  the  law 
cannot  require  business  to  be  con- 
ducted upon  any  unusual  basis.  It 
is  only  experience  and  advancing 
knowledge  that  enable  remedies  to 
be  adopted  for  dangers  that  have 
not  been  so  common  or  serious  in 
their  consequences  as  to  turn  atten- 
tion to  their  removal.  And  changes 
in  methods  of  doing  business,  or  dif- 
ferences of  method  between  differ- 
ent parties  engaged  in  it.  are  quite 
as  likely  to  imperil  safety  by  the  un- 
certainty and  perplexity  to  which 
all  persons  would  be  exposed  as  the 
failure  of  any  one  to  adopt  some  pos- 
sible safeguard  that  has  not  usually 
been  adopted.  All  rules  applied 
must  be  reasonable  and  not  oppres- 
sive, and  must  be  applied  with  ref- 
erence to  the  ordinary  conduct  of 
affairs.  Every  one  has  a  right  to  ex- 
pect that  railroads  will  be  managed 
according  to  the  common  custom, 
and  railroad  companies  have  a  right 
in  their  turn  to  expect  conformity 
to  this.  Every  person  dealing  with 
them  has  his  own  duties  to  perform 
in  harmony  with  theirs."  Cross  v. 
Lake  Shore  R.  Co.,  69  Mich.  363; 
Cooley  on  Torts,  605,  607. 


644 


CU.  III.]  THE    PASSENGER    CARRIER'S    LIABILITY.  [§  631. 

Lusiness.  The  degree  of  care  must,  as  we  have  often  said,  be 
dependent  upon  the  hazards  ahd  dangers  that  must  necessarily 
be  encountered  by  the  passenger. 

§  631.  Overloading  and  overcrowding  vehicles. —  The  car- 
rier is  not  only  bound  to  furnish  conveyance  for  all  who  apply, 
subject  to  the  few  limitations  noticed,  but  he  must  furnish  safe 
and  reasonably  comfortable  accommodations.  By  a  system  of 
inspections  and  licenses,  the  carriage  by  steamboats  is  regulated 
as  to  the  number  they  are  permitted  to  carr}^ ;  but  while  there 
is  no  legal  restriction  fixing  the  number  that  coaches  and  rail- 
roads  shall  carry,  it  is  well  settled  that  they  should  convey  only 
what  their  vehicles  will  reasonably  accommodate.  Where  it 
appeared  that  the  carrier  company  had  admitted  passengers 
upon  its  cars  until  all  the  seats  were  taken  and  passengers  were 
compelled  to  stand  up  in  the  aisles  and  on  the  platforms  of  the 
cars,  and  that  the  plaintiff,  while  standing  on  the  platform, 
was  thrown  off  and  injured,  a  judgment  for  the  plaintiff  was 
sustained  upon  the  theory  that  the  jury  might  find  from  the 
circumstances  that  the  carrier  was  guilty  of  negligence  in  over- 
loading the  cars.^  Where  one  upon  a  crowded  street-car  found 
standing  room  upon  the  front  platform,  where  he  was  com- 
pelled to  stand  with  one  foot  upon  the  step  and  the  other  upon 
the  platform,  holding  on  by  his  hands,  and  while  riding  in  this 
way  a  movement  of  the  persons  upon  the  platform  with  him 
caused  him  to  lose  his  hold,  which  he  was  unable  to  regain,  and 
by  the  pressure  of  the  crowd  he  was  forced  off  the  car,  falling 
under  the  wheels  which  crushed  his  left  leg,  rendering  ampu- 
tation necessary,  it  was  held  to  be  a  question  of  fact  whether 
such  overcrowding  of  the  car  was  negligence.  The  court  say: 
"  The  exposure  of  a  passenger  to  danger,  which  the  exercise  of 
a  reasonable  foresight  would  have  anticipated,  and  due  care 
avoided,  is  negligence  on  the  part  of  the  carrier;  that  it  may 
not  be  held,  as  matter  of  law,  that  the  exercise  of  a  reasonable 
foresight  will  not  lead  a  street  railway  company  to  anticipate 
that  overcrowding  of  its  cars  and  their  platforms  will  render 
accidents  to  passengers  probable;  but  the  question  whether  it 
is  chargeable  with  negligence  in  permitting  such  overcrowding 

1  Trumbull  v.  Ericson.  97  Fed.  891;     G3;  Chesapeake  &  Ohio  v,  Clowes,  93 
Graham  v.  McNeal,  55  Pac.  (Wash.)    Va.  189,  24  S.  E.  833. 

645 


§  631.]  CARRIERS    OF   PASSENGERS.  [PART    VI. 

is  one  of  fact."  ^  "Where  one  entered  one  of  the  carrier's  regu- 
lar trains  which  was  about  to  start,  and,  before  he  learned  he 
could  not  get  a  seat,  the  train  was  going  at  a  high  rate  of  speed, 
and  on  being  asked  the  conductor  refused  him  a  seat,  where- 
upon, his  fare  being  demanded,  he  offered  to  pay  if  a  seat  was 
furnished,  but  refused  if  it  was  not,  it  was  held  that  he  had  a 
right  to  refuse  payment  of  fare,  and  by  so  doing  he  did  not 
become  a  trespasser  on  the  train,  for  a  passenger  has  a  right 
to  be  provided  with  a  seat.^  The  court,  in  the  course  of  the 
opinion,  say:  "It  is,  in  general,  the  duty  of  a  railroad  com- 
pany to  provide  sufficient  cars  to  carry  all  who  have  occasion 
to  travel  on  its  line  of  road.  As  the  law  does  not  require  un- 
reasonable things,  a  single  instance,  or  occasional  instances,  of 
insufficiency  in  the  amount  of  means  to  travel,  caused  by  a 
rush  of  travel  not  reasonably  to  be  expected  b}'"  the  company, 
would  probably  be  excused;  and  the  railroad  company,  like 
all  other  common  carriers  of  passengers,  must  provide  those 
whom  it  carries  with  the  usual  reasonable  accommodations  for 
comfort  in  traveling,  including  seats.  This  is  too  well  estab- 
lished to  need  citation  of  authorities."  The  consensus  of  the 
authorities  seems  to  be  that  while  it  is  the  duty  of  the  common 
carrier  of  passengers  to  furnish  reasonable  accommodations 
for  their  passengers,  which  would  include  seats  in  their  pas- 
senger cars,- unless  it  should  be  upon  some  unexpected  occasion 
when  there  was  a  great  rush  of  travel,  the  passenger  would 
not  be  upheld  in  refusing  to  pay  his  railroad  fare,  unless  he 
Avas  upon  the  train  and  could  not  leave  it,  but  would  have  the 
option  to  continue  the  journey  or  to  leave  the  train  at  the  first 
opportunity,  and  being  compelled  to  thus  leave  the  train  might 
have  an  action  against  the  carrier  for  whatever  damage  re- 
sulted therefrom.  The  authorities  also  hold  that  if  the  passen- 
ger, because  of  overcrowded  trains,  is  compelled  to  violate 
some  of  the  reasonable  regulations  of  the  company,  like  stand- 
ing upon  the  platform,  and  while  doing  so  is  injured,  he  will 
not  be  held  to  be  guilt}^  of  contributory  negligence,  and  the 

carrier  may  be  held  liable  for  any  damage  that  results  from  an 

• 

iLehr  v.  S.  &  H.  R.  Ry.  Co..  118  Co.,  39  Minn.  3;  Louisville,  etc.  Ry. 
N.  Y.  5.56;  West  Chicago,  etc.  Co.  v.  v.  Patterson,  69  Miss.  421.  See  also 
McNulty.  64  111.  App.  549.  the  last  above  case  as  reported  in  23 

^Hardenberg  v.  St.  Paul,  etc.  R.     L.  R.  A.  259,  with  notes  of  cases. 

646 


CH.   III.J  THE    PASSENGER    CAERIEr's    LIABILITY.  [§  632. 

injury  received  at  such  a  time  if  it  should  be  found  that  the 
overloading  or  overcrowding  of  the  train  was  negligence  upon 
the  part  of  the  carrier;  and  the  same  liability  may  be  said  to 
attach  to  street-car  companies,  or  to  any  other  carrier  of  pas- 
sengers. 

§  632.  Liability  of  carrier  for  abuse  of  passengers. —  The 
passenger  is  entitled  to  protection  from  assaults  or  abuse  from 
the  carrier  and  his  servants,  and  also  from  fellow  passengers  and 
even  strangers.  While  a  passenger,  he  is  to  a  certain  extent 
under  the  control  of  the  carrier  and  at  all  times  entitled  to 
his  protection.  The  passenger  is  invited  to  occupy  the  waiting- 
rooms  of  the  carrier,  is  required  to  travel  over  the  way  pre- 
pared by  him  in  order  to  take  passage  upon  his  conveyances, 
and,  if  he  be  conveyed,  has  no  choice  as  to  the  time  or  manner 
except  as  to  the  several  hours  at  which  the  carrier  departs,  or  of 
the  conveyances  employed.  Where  the  plaintiff  boarded  the 
platform  of  a  baggage  car  on  the  carrier's  road  to  ride  to  a 
place  where  the  cars  were  being  backed  to  make  up  a  train, 
the  carrier's  order  forbidding  all  persons  except  certain  em- 
ployees to  ride  on  the  baggage  cars,  and  directing  baggagemen 
to  rigidly  enforce  the  rule,  and  where,  as  it  appeared,  the  car- 
rier's baggageman  ordered  the  plaintiff  off  while  the  car  was 
in  motion,  and  the  plaintiff  replied  that  he  could  not  get  off 
because  of  a  pile  of  wood  near  the  track,  whereupon  the  bag- 
gage-master of  the  carrier  kicked  him  off  and  he  fell  against 
the  wood  and  then  under  the  car  and  was  injured,  in  an  action 
to  recover  damages  it  was  held  that  the  fact  that  the  plaintiff 
was  a  trespasser  was  no  defense,  and  that  the  evidence  was 
sufficient  to  authorize  the  submission  of  the  defendant's  liabil- 
it}'^  to  a  jury;  and  the  court  refused  to  disturb  a  judgment 
wliich  had  been  obtained  by  the  plaintiff.^  The  court  in  the 
opinion  say:  "It  is,  in  general,  sufficient  to  make  the  master 
responsible  that  he  gave  to  the  servant  an  authority,  or  made 
it  his  duty,  to  act  in  respect  to  the  business  in  which  he  was 
engaged  when  the  wrong  was  committed,  and  that  the  act 
complained  of  was  done  in  the  course  of  his  employment.  The 
master  in  that  case  will  be  deemed  to  have  consented  to  and 
authorized  the  act  of  the  servant,  and  he  will  not  be  excused 
from  liability,  although  the  servant  abused  his  authority,  or 

1  Rounds  V.  Del.  etc.  Ry.  Co.,  64  N.  Y.  129. 
6-17 


§  632.]  CAKRTERS    OF    PASSENGERS.  [PAET    VI. 

was  reckless  in  the  performance  of  his  duty,  or  inflicted  an 
unnecessary  injury  in  executing  his  master's  orders.  The  mas- 
ter who  puts  the  servant  in  a  place  of  trust  or  responsibilit}^, 
or  commits  to  him  the  management  of  his  business  or  the  care 
of  his  propertj'',  is  justly  held  responsible  when  the  servant, 
through  lack  of  judgment  or  discretion,  or  from  infirmity  of 
temper,  or  under  the  influence  of  passion  aroused  by  the  cir- 
cumstances and  the  occasion,  goes  beyond  the  strict  line  of  his 
duty  or  authority  and  inflicts  an  unjustifiable  injury  upon  an- 
other. But  it  is  said  that  the  master  is  not  responsible  for  the 
wilful  act  of  the  servant.  This  is  the  lano^uage  of  some  of  the 
cases,  and  it  becomes  necessary  to  ascertain  its  meaning  when 
used  in  defining  the  master's  responsibilit3^  ...  It  seems 
to  be  clear  enough  from  the  cases  in  this  state  that  the  act  of 
the  servant  causing  actionable  injury  to  a  third  person  does 
not  subject  the  master  to  civil  responsibility  in  all  cases  where 
it  appears  that  the  servant  was  at  the  time  in  the  use  of  his 
master's  property,  or  because  the  act,  in  some  general  sense, 
was  done  while  he  was  doing  his  master's  business,  irrespective 
of  the  real  nature  and  motive  of  the  transaction.  On  the  other 
hand,  the  master  is  not  exempt  from  responsibility  in  all  cases 
on  showing  that  the  servant,  without  express  authority,  de- 
signed to  do  the  act  or  the  injury  complained  of.  If  he  is  au- 
thorized to  use  force  against  another  when  necessary  in  execut- 
ing his  master's  orders,  the  master  commits  it  to  him  to  decide 
what  degree  of  force  he  shall  use;  and  if,  through  misjudg- 
ment  or  violence  of  temper,  he  goes  beyond  the  necessity  of 
the  occasion,  and  gives  a  right  of  action  to  another,  he  cannot, 
as  to  third  persons,  be  said  to  have  been  acting  without  the 
line  of  his  duty,  or  to  have  departed  from  his  master's  busi- 
ness. If,  however,  the  servant,  under  guise  and  cover  of  ex- 
ecuting his  master's  orders,  and  exercising  the  authority  con- 
ferred upon  him,  wilfully  and  designedh',  for  the  purpose  of 
accomplishing  his  own  independent,  malicious  or  wicked  pur- 
poses, does  an  injury  to  another,  then  the  master  is  not  liable. 
The  relation  of  master  and  servant,  as  to  that  transaction,  does 
not  exist  between  them.  It  is  a  wilful  and  wanton  wrong  and 
trespass,  for  which  the  master  cannot  be  held  responsible.  And 
when  it  is  said  that  the  master  is  not  responsible  for  the  wilful 
wrong  of  the  servant,  the  language  is  to  be  understood  as  re- 

648 


CH.  III.]  THE   PASSENGER    CAEEIEE's    LIABILITY.  [§  632. 

ferring  to  an  act  of  positive  and  designed  injury,  not  done  with 
a  view  to  the  master's  service,  or  for  the  purpose  of  executing 
his  orders." 

So  an  express  company  was  held  liable  for  the  acts  of  its 
agents  for  cursing,  abusing  and  maltreating  the  plaintiff  im- 
mediately after  refunding  to  him  certain  overcharges  which 
he  had  come  to  the  office  to  obtain,  and  the  delivery  of  a  re- 
ceipt therefor.  It  Avas  held  that  this  treatment  was  a  part  of 
the  res  gestce,  and  that  the  company  was  liable  for  the  tort.^ 
"  The  law  is  well  settled  that  it  is  the  duty  of  the  common  car- 
rier to  use  the  highest  degree  of  care  reasonably  practicable 
in  exercising  police  power  to  protect  its  passengers  from  insult 
and  injury  by  fellow  passengers."^ 

In  St.  Louis  V.  Myer"^  it  was  held  that  "it  is  the  first  and 
highest  duty  of  the  conductor  of  a  railroad  train,  knowing,  or 
having  reason  to  believe,  that  a  passenger  is  a  dangerous  luna- 
tic, to  take  proper  action  at  once  for  the  security  of  the  other 
passengers  against  his  violence,  and,  failing  to  discharge  such 
duty,  to  communicate  to  the  other  passengers  the  facts  within 
his  knowledge  showing,  or  tending  to  show,  that  they  are  riding 
in  a  car  with  a  violently  insane  man  under  no  guard  or  re- 
straint, to  the  end  that  the}^  may  themselves  take  suitable  pre- 
cautions for  safety."  It  has  also  been  frequently  held  that  not 
only  is  it  the  duty  of  the  carrier  to  protect  its  passengers  against 
insane  persons,  but  also  to  protect  them  against  drunken  pas- 
sengers, or  those  persons  who  are  liable  to  inflict  abuse  or  as- 
saults upon  them.  And  where  the  carrier  has  failed  to  do  its 
duty  in  this  respect,  knowing  the  situation  from  its  servants 
or  agents,  they  have  been  held  liable  for  damages  resulting  from 

1  Richberger  v.  American  Ex.  Co.,  lyn  Heights  R.  Co.,  42  N.  Y.  Sup.  906. 

73  Miss.  161,  31  L.  R.  A.  390:  Dwin-  A  carrier  who  permits  passengers  to 

nelle  v.  N.  Y.  Cent.  R.  Co.,  120  N.  Y.  wait  in  its  depot  for  trains  is  liable 

117,  8  L.  R.  A.  224;  Wise  v.   Coving-  to  one  who,  after  purchasing  a  ticket, 

ton,  etc.  Street  Car  Co.,  95  Ky.  537;  is    waiting,    and    is    indecently   as- 

Conger,  etc.  v.  St.  Paul,  etc.  R.  Co.,  saulted  by  ics  station  agent.     Grif- 

45  Minn.   207;  Baltimore  &  Ohio  Ry.  fith  v.  Railway  Co.,  94  N.  W.  168.~ 
Co.  V.  Barger,  80  Md.  23,  26  L.  R.  A.        ^  Lucy  v.  Chicago,  etc.  R.  Co.,  64 

220;  Texas  &  P.  Ry.  Co.  v.  Williams,  Minn.  7,  31  L.   R.   A.  551;  MuUan  v. 

23   U.   S.   App.  379,  62  Fed.  440.     A  Wis.  Cent.  R.  Co.,  46  Minn.  474. 
railroad  comi)any  was   made  liable        » lo  U.  S.  App.  677,  4  C,  C.  A.  221, 

for  an  assault  made  upon  a  passen-  54  Fed.  116;  St.  Louis,  etc.  R.  Co.  v. 

ger  by  its  conductor.  Lulirs  v.  Brook-  Greenthal,  23  U.  S.  Ct.  Ct.  Ap.  100. 

619 


§  633.]  CARKIERS    OF    rASSENGEKS.  [PAET    VI, 

such  treatment.^  But  where  a  person  was  murdered  in  a  sleep- 
ing-car by  some  intruder,  stranger,  or  fellow  passenger,  it  was 
held  that  the  carrier  was  not  liable  if  he  did  not  know,  or  his 
employees  did  not  know,  of  an  impending  danger,  and  there 
were  no  circumstances  to  arouse  their  suspicions.^  The  court 
say :  "  Carriers  are  paid  to  preserve  watch  and  ward  over  their 
sleeping  guests,  and  they  are  rightfully  held  to  a  due  and  faith- 
ful discharge  of  the  obligations  thus  assumed."  But,  say  the 
court:  "It  (the  carrier)  cannot  be  deemed  to  have  anticipated 
or  be  expected  to  guard  and  protect  its  passengers  against  a 
crime  so  horrid  and  happily  so  rare  as  that  of  murder.  .  .  . 
To  do  so  would  be  to  require  of  them  more  than  human  fore- 
sight as  to  the  minds  and  motives  of  men,  and  make  them,  in- 
deed, insurers  of  the  safety  of  passengers  while  under  their 
care  against  all  dangers,  however  remotely  connected  with 
their  acts  of  omission  or  commission." 

In  this  connection  the  court  quote  from  Batton  v.  Railroad 
Co.^  where  it  was  held  that  while  it  was  the  duty  of  a  railroad 
company  as  a  common  carrier  to  protect  its  passengers  against 
violence  or  disorderly  conduct  on  the  part  of  its  own  agents  or 
other  passengers  and  strangers  when  such  violence  or  miscon- 
duct may  be  reasonably  expected  and  prevented,  yet  it  is  not 
liable  to  an  action  for  damages  for  a  wrono;  when  it  is  not  shown 
that  the  company  had  notice  of  any  facts  which  justified  the 
expectation  that  a  wrong  would  be  committed ;  and  the  court 
say  in  its  opinion,  "  that  all  the  cases  upon  the  subject  impose 
the  qualification  that  the  wrong  or  injury  done  the  passenger 
by  such  strangers  must  have  been  of  such  a  character  and  per- 
petrated under  such  circumstances  as  that  it  might  reasonably 
have  been  anticipated  or  naturally  expected  to  occur." 

§  633.  Fares  —  Tickets  —  Contracts  for  carriage. —  The 
contract,  express  or  implied,  by  which  the  carrier  transports 
the  passenger  is  one  for  hire.  He  is  bound  to  carry  the  pas- 
senger who  presents  himself  for  carriage,  provided  he  is  a 
proper  person  and  entitled  to  become  a  passenger  and  pays  the 

1  Rommel  v.  Schanbacher,  120  Pa.     See  also  notes,   111.  Cent.  R.  Co.  v. 
St.  579;  Richmond  &  Co.  v.  Jefferson,     Minor,  69  Miss.  718,  16  L.  R.  A.  637. 
89  Ga.  554,  17  L.  R.  A,  571;  Myer  v.        2  Ball   v.  Chesapeake  &  Ohio  Ry. 
St.   Louis,   etc.   R.  Co.,  54  Fed.  116.     Co.,  93  Va.  44,  32  L.  R  A.  792. 

3  77  Ala.  591,  54  Am.  Rep.  80. 
650 


CH.  III.]  THE    PASSENGER    CAEKIER's    LIABILITY.  [§  633. 

reasonable  price  charged.  As  evidence  of  this  payment  the 
carrier  may,  and  generally  does,  issue  to  the  passenger  a  ticket 
which  entitles  him  to  transportation  between  the  points  named, 
or  issues  to  him  a  mileage  ticket  or  coupon  ticket  entitling  him 
to  carriage  for  the  number  of  miles  or  trips,  as  the  case  may  be. 
A  ticket  like  a  bill  of  lading  may  be  said  to  be  both  a  receipt 
for  the  payment  of  the  fare  and  at  the  same  time  a  contract 
for  conveyance  of  the  passenger  according  to  its  terms.  And 
here  it  may  be  remarked  that  fair  and  honest  dealing  on  the 
part  of  both  the  carrier  and  the  passenger  is  demanded.  The 
carrier  company  will  be  held  to  a  strict  performance,  upon  its 
part,  of  the  contract  it  makes,  and  if  upon  its  tickets  it  uses 
ambiguous  language  as  to  any  conditions  or  agreements,  it  will 
be  construed  favorably  to  the  passenger  and  against  the  carrier. 
The  payment  of  fare  is  an  important  element  in  the  contract 
for  carriage.  It  is  the  consideration  which  induces  the  under- 
taking upon  the  part  of  the  carrier.  The  ticket  is  evidence  of 
its  payment.  The  amount  charged  must  be  reasonable,  and  is 
generally  regulated  by  statutes  in  the  different  states,  and  some- 
times fixed  in  the  charters  that  are  issued  to  the  carrier  com- 
panies. So,  the  carrier  cannot  charge  more  than  the  reasonable 
amount  allowed  by  the  statute  or  its  charter,  but  may  charge 
a  less  amount  if  the  charge  is  general  and  not  discriminated; 
therefore  the  carrier  often  writes  or  prints  into  his  ticket  con- 
ditions and  agreements,  basing  them  upon  the  consideration  that 
the  ticket  is  sold  at  a  reduced  rate  of  fare,  and  this  considera- 
tion is  held  to  be  a  valuable  consideration  and  sufficient  to 
support  such  agreements,  except  agreements  so  limiting  the 
liability  of  the  carrier  as  to  excuse  him  for  his  own  negli- 
gence. And  so  it  has  been  held  that  conditions  in  a  round-trip 
excursion  railroad  ticket  stipulating  that  it  shall  be  used  only 
by  the  original  purchaser,  and  requiring  him  to  identify  him- 
self as  such  at  the  point  of  destination  before  beginning  the 
return  passage,  is  not  unreasonable  or  invalid.^  And  where  a 
railroad  ticket  was  sold  at  a  reduced  rate  in  consideration  of  cer- 
tain conditions,  among  others,  that  it  should  be  stamped  by  the 
company's  joint  agent  at  the  place  of  departure  before  it  would 
be  accepted  for  the  return  passage,  it  was  held  "  the  condition 

1  Dangerfield  v.  Atchison,  etc.  R.  Co.,  63  Kan.  83,  61  Pac.  403. 

651 


§  633.]  CAKKIERS    OF    PASSENGERS.  [PART    VI. 

was  reasonable,  and  one  failing  to  have  the  ticket  stamped  was 
not  entitled  to  passage  thereon."  ^ 

The  court  say:  "  The  theory  upon  which  unusual  terras  in 
excursion  tickets  are  upheld  is  that  (1)  they  are  sold  at  re- 
duced rates  of  fare  and  not  at  the  usual  or  ordinary  rates. 
(2)  They  are  sold  for  special  occasions  and  not  for  ordinary 
and  unlimited  use.  (3)  By  accepting  such  ticket  when  he  has 
the  option  to  purchase  the  usual  and  ordinary  ticket,  the  pas- 
senger enters  into  a  contract  with  the  carrier  different  from 
that  implied  by  law  upon  the  purchase  of  an  ordinary  ticket  at 
full  rates  of  fare.  (4)  The  purchaser  is  bound  in  such  cases  by 
the  terms  of  the  contract.  He  is  entitled  to  its  advantages  of 
reduced  fare,  and  is  bound  by  reasonable  regulations  for  its 
use.  .  .  .  It  is  equally  for  the  benefit  of  the  carrier  and 
the  public  that  the  right  to  make  these  special  contracts,  when 
reasonable,  should  be  upheld  and  enforced.  Large  numbers  of 
passengers  take  advantage  of  excursion  rates  who  would  oth- 
erwise not  be  able  or  willing  to  travel  at  all.  People  of  lim- 
ited means  most  generally  avail  themselves  of  these  reduced 

1  Watson  V.  Louisville,  etc.  R.  Co.,  damages.  Judge  Champlain  in  the 
104  Ten n.  194,  49  L.  E.  A.  454,  citing  opinion  said:  "Parties  capable  of 
Mosher  v.  Railway  Co.,  137  U.  S.  390;  contracting  may  enter  into  such 
Boylan  v.  Railway  Co.,  133  U.  S.  146;  agreements  as  they  choose,  and  if 
Edwards  v.  Railway  Co., 81  Mich,  364.  they  rest  upon  a  sufficient  considera- 
In  Edwards  v.  Railway  Co.  a  round-  tion,  and  are  not  void  for  illegality, 
trip  ticket  from  Lansing  to  Chicago  nor  as  being  against  public  policy, 
was  sold  at  a  reduced  rate.  Condi-  they  are  binding  upon  them.  The 
tions  were  printed  upon  the  back  of  contract  of  carriage  in  this  case,  in- 
the  ticket,  and  one  of  the  conditions  eluding  the  conditions,  was  a  valid 
was  that  the  ticket  should  not  be  and  binding  agreement.  The  con- 
good  to  return  unless  the  passenger  ditions  were  reasonable  and  rested 
identified  himself  to  the  ticket  agent  upon  a  sufficient  consideration, 
at  Chicago,  and  procured  his  stamp  namely,  the  reduced  rate  of  fare." 
upon  the  ticket  and  himself  signed  In  Eastman  v.  Maine  Cent.  Ry.  Co. 
it.  These  conditions  were  signed  by  (N.  H.,  1900),  46  Atl.  54,  it  was  held 
the  passenger;  he,  however,  failed  to  that  "a  condition  on  which  a  mileage 
identify  himself  to  the  ticket  agent  book  is  purchased  of  a  carrier  — 
at  Chicago  when  read}- to  return  and  that,  if  presented  by  another  than 
obtain  the  stamp  required,  but  sue-  the  person  to  whom  it  was  issued,  it 
ceeded  in  boarding  the  train,  but  not  shall  be  forfeited  —  is  valid."  Louis- 
by  the  usual  way  of  passing  the  gate-  ville,  etc.  Co.  v.  Wright,  47  N.  E.  491; 
keeper.  His  ticket  was  refused:  he  Acton  v.  Castle  Mail-packet  Co.,  73 
was  finally  put  off  tlie  train  and  L.  T.  158;  Thompson  v.  Trusdale,  61 
afterwards   brought    an  action   for  Minn.  129. 

652 


CH.  III.]  THE   PASSENGER   CARRIER'S    LIABILITY.  [§  634, 

fares,  and  do  so  with  the  full  expectation  that  they  will  be 
subjected  to  requirements  and  inconveniences  that  they  would 
not  meet  on  ordinary  occasions  when  paying  full  fare.  On 
the  other  hand,  carriers  reap  a  benefit  from  them  in  increased 
travel  with  increased  receipts  though  not  the  usual  profits.  It 
is  not  consistent  with  public  polic}'  to  so  restrict  and  hamper 
the  use  of  such  tickets  as  to  prevent  the  running  of  excursions 
and  the  granting  of  such  rates.  To  do  so  would  be  to  deprive 
persons  of  limited  means  of  the  opportunities  for  travel  which 
they  desire." 

It  has  been  held,  however,  that  provisions  or  conditions 
printed  upon  the  face  of  a  passenger's  return-trip  ticket,  to  the 
effect  "  that  it  will  not  be  valid  for  the  return  journey  unless 
stamped  by  the  agent  of  the  company  at  the  place  from  which 
the  return  journey  is  authorized,  forms  no  part  of  the  contract 
between  such  purchaser  as  a  passenger  and  such  company  as  a 
carrier,  and  does  not  qualify  the  usual  rights  and  obligations 
of  either  if  such  purchaser  does  not  assent  to  such  conditions 
before  or  at  the  time  he  purchases  such  ticket."^ 

§  634.  Where  the  carrier  or  agent  is  at  fault. —  Thus  far 
we  have  noticed  cases  where  the  passenger  was  at  fault  in  vio- 
lating the  conditions  of  the  contract.  But  where  the  violation 
of  the  contract  is  attributable  to  the  fault  of  the  carrier  or  his 
agent  the  rule  is  very  different.  As  where  a  passenger  had 
purchased  a  round-trip  ticket,  and  on  it  was  the  condition  that 
he  was  to  present  it  to  the  agent  at  the  terminus  of  his  trip, 
sign  the  ticket  in  the  agent's  presence,  and  procure  it  to  be 
stamped  by  the  agent  in  order  to  make  it  valid  for  use  on  his 
return  trip,  and  the  passenger  did  present  himself  at  the  ticket 
office,  did  sfgn  his  name  to  his  ticket  in  the  presence  of  the 
agent,  and  gave  it  to  the  agent,  who  took  it  to  the  rear  end  of 
his  office,  and  afterwards  returned  with  it  folded  and  handed 
it  with  a  sleeping-car  ticket  to  the  passenger,  but  after  the  pas- 
senger had  proceeded  for  a  distance  upon  his  return  trip  it  was 
discovered  that  the  ticket  was  not  stamped,  and  the  passenger 
for  this  reason  was  ejected  from  the  train,  it  was  held,  in  an 
action  for  damages,  that  the  company  was  liable.^  The  court 
say  in  discussing  this  principle:  "  It  has  been  held  that  it  is  a 

1  Lake  Sliore  &  Mich.  S.  Ry.  Co.  v.        2  Northern  Pac.  Ry.  Co.  v.  Pawson, 
Mortal,  8  Ohio  Dec.  134.  70  Fed.  585,  30  L.  R.  A.  730. 

653 


§  634.]  CAKKIEES    OF    PASSENGERS.  [PART    TI. 

reasonable  regulation  upon  the  part  of  the  company  to  require 
passengers  getting  upon  its  railroad  train  without  a  ticket  to 
pay  additional  fare;  but  in  this  connection  the  court  declare  that 
a  reasonable  opportunity  must  be  given  to  the  passenger  to  en- 
able him  to  purchase  the  ticket;  that  if  the  passenger  fails  to 
purchase  a  ticket  solely  on  account  of  the  premature  closing 
of  the  ticket  office,  or  of  the  failure  of  the  company  to  have  an 
office  for  the  sale  of  tickets,  he  cannot  be  required  to  pay  ad- 
ditional fare,  and  if  expelled  for  the  non-pa3aTient  of  the  addi- 
tional fare,  after  paying  or  offering  to  pay  the  regular  fare,  he 
is  entitled  to  recover  damages  for  the  expulsion.^  The  reason 
given  is,  that  to  allow  a  railroad  company  to  enforce  its  rule 
for  additional  fare  under  such  circumstances  would  be  punish- 
ing the  passenger  for  the  railroad  company's  neglect  of  duty. 
Unless  the  railroad  company  furnishes  the  necessary  conven- 
iencies  or  facilities  for  procuring  tickets,  the  passenger  cannot 
be  considered  to  be  in  any  manner  at  fault.  With  reference 
to  the  rights  of  a  passenger  to  be  carried  on  the  wrong  coupon, 
where  the  coupons  were  detached  by  the  conductor  on  the 
going  trip,  and  the  returning  coupon  instead  of  the  going  coupon 
is  retained  by  the  conductor,  and  the  going  coupon  instead  of 
the  returning  coupon  given  to  the  passenger,  which  the  passen- 
ger retains  without  discovering  the  mistake  until  he  presents 
it  to  the  conductor  on  the  return  trip,  and  then  makes  his  ex- 
planation as  to  how  the  mistake  occurred,  the  courts  have  held 
that  under  such  circumstances  the  passenger  has  the  lawful 
right  to  be  carried  on  his  return  trip  on  presenting  the  going- 
coupon  with  the  explanation;  and  if  expelled  for  not  paying 
his  fare  he  is  entitled  to  recover  damages  for  the  expulsion.- 
These  cases,  as  well  as  others  previously  referred  to,  all  pro- 
ceed upon  the  ground  that  the  passenger  was  wholly  without 
fault;  that  he  had  done  all  that  could  reasonably  be  required 
of  him  to  do,  and  that  the  railroad  company,  by  the  mistake, 
carelessness  or  negligence  of  its  agents  or  conductors,  was  itself 

iPool  V.  Northern  Pac.  Ry.  Co.,  16  88  Ind.  381,  45  Am.  Rep.  464;  Balti- 

Oreg.  261;  State  v.  Hungerford,  39  more  &  Ohio  Ry.  Co.  v.  Bambray,  16 

Minn.  7;  Everett  v.  Chicago,  etc.  Co.,  Atl.  67;  Wightman  v,  Chicago,  etc.  R 

69  Iowa,  15,  58  Am.  Rep.  207.  Co..  73  Wis.  169.  2  L.  R.  A.  185;  Phila- 

^Pa.  etc.  Ry.  Co.  v.  Bray,  125  Ind.  delphia.etc.  R.  Co.  v.  Rice.  64  Md.  63; 

229;  Lake  Erie,  etc.  Ry.  Co.  v.  Fix,  Rouser  v.  Railway  Co.,  97  Mich.  565. 

654 


en.   III.]  THE    PASSENGER    CAREIEr's    LIABILITY.       [§§  635,  636. 

at  fault.  This  is  the  underlying  principle  of  all  the  well  con- 
sidered cases  upon  this  subject;  this  principle  is  fair  to  both 
parties;  it  is  sound,  reasonable  and  just.^  " 

§  635.  Exhibition  and  snrrender  of  tickets. —  There 

are  certain  regulations  not  binding  merely  because  they  are  a 
part  of  the  contract,  but  made  effective  and  of  force  because 
they  are  considered  to  be  reasonable,  just  and  necessary  in 
order  to  carry  out  the  obligations  of  the  carrier  company  to 
the  public.  Among  these  may  be  mentioned  the  requirement 
that  passengers  will  not  be  permitted  to  board  the  trains  or 
boats  or  vehicles  until  they  have  passed  through  the  gate  sep- 
arating the  vehicles  from  the  public  waiting-rooms  and  had 
their  tickets  punched  by  the  gate-keeper.  This  is  a  necessary 
and  important  regulation,  especially  at  large  city  stations 
where  trains  are  made  up  and  numerous  passengers  are  ad- 
mitted for  carriage,  or  where  great  steamboats  are  loaded  with 
passengers.  It  necessarily  facilitates  the  work  that  must  be 
done,  and  in  most  cases,  it  may  be  said,  makes  it  possible  for 
the  carrier  to  perform  more  efficient  and  better  service.  The 
carrier  may  enforce  such  a  regulation  and  prevent  its  viola- 
tion.2  The  regulation,  too,  that  a  passenger  is  bound  to  show 
his  ticket  to  the  person  who  is  in  charge  of  the  vehicle,  is  held 
to  be  a  reasonable  one. 

§  636.  Lost  or  mislaid  tickets. —  As  we  have  seen, 

the  regulation  that  a  passenger  must  produce  and  show  his 
ticket  when  called  for  is  not  only  reasonable,  but  it  is  without 
doubt  a  necessary  regulation  in  order  to  facilitate  the  business 
and  make  it  possible  for  the  carrier  to  transport  the  passen- 
ger. And  where  a  passenger  has  lost  or  mislaid  his  ticket, 
and  cannot  produce  it  when  called  upon,  after  having  been 
given  a  reasonable  time  to  find  it  and  produce  it,  he  may  be 
required  to  pay  his  fare  or  be  expelled  from  the  train  or  the  ve- 
hicle. While  this  regulation  may  in  some  instances  work  a 
great  hardship,  it  is  evident  that  as  a  general  rule  it  is  nec- 

1 A  railroad  company  whose  ticket  for  the  ajijent's  mistake,  since  the 

was  given  by  mistake  to  a  passenger  breach  of  duty  is  tliat  of  the  com- 

in  lieu  of  a  ticket  of  another  com-  pany  whose  ticket  was  desired.  Scott 

pany  which  was  called  for,  where  it  v.  Railway  Co.,  144  Ind.  125. 
was  bought  in  a  union  depot  of  an        ^fjickerman  v.  Union  Depot  Co., 

agent  who  had  authority  to  sell  tick-  44  Minn.  433. 
t'ts  for  both  companies,  is  not  liable 

655 


§  637.]  CAKKIEES    OF    PASSENGEES.  [PAKT    VI. 

essary,  otherwise  it  would  open  the  door  for  fraud  or  decep- 
tion, and  the  carrier  would  necessarily  suffer  for  want  of  it. 
And  so  it  has  been  held  that  a  rule  requiring  the  conductor  to 
eject  from  the  train  a  passenger  who  refuses  to  produce  a 
ticket  or  pay  his  fare  on  demand  is  a  reasonable  one,  and  the 
purchaser  of  a  non-transferable  commutation  ticket,  who  has 
lost  it,  and  refuses  on  account  of  such  loss  to  pay  his  fare  upon 
the  train,  falls  w^ithin  the  rule,  and  cannot  maintain  an  action 
of  tort  against  the  company  to  recover  damages  for  being- 
ejected  by  the  conductor  for  non-compliance  with  it.^ 

§  637. Stop-over  tickets  —  Time  limit  —  Train  limit, 

etc. — -The  presumption  is,  that  when  a  passenger  purchases  a 
ticket  he  will  use  it  at  once,  or  within  a  reasonable  time,  and 
make  a  continuous  journey;  and  so  it  has  been  held  that  it  is 
a  reasonable  regulation  that  a  passenger,  if  he  would  stop  over 
between  the  points  for  which  he  is  ticketed,  must,  if  his  ticket 
is  limited,  surrender  it  and  obtain  a  stop-over  check  or  ticket; 
that  the  carrier  may  limit  the  time  the  ticket  will  be  good,  and 
the  train  or  class  of  trains  upon  which  it  will  be  taken.  "Where 
a  passenger  boards  a  train  upon  a  ticket  which  he  knows  does 
not,  upon  its  face,  entitle  him  to  passage  because  the  time  for 
which  it  purports  to  be  valid  has  expired,  even  though  he  thinks 
the  limitation  unreasonable,  and  is  ejected  from  the  train  for 
refusing  to  pay  fare,  he  cannot  in  an  action  recover  damages, 
nor  is  he  entitled  to  have  the  price  refunded.  In  such  a  case 
the  court  say:  "By  not  using  the  ticket  within  the  time  fixed 
by  it,  his  rights  under  the  ticket  w^ere  at  an  end,  and,  before 
he  could  rightfully  claim  a  passage,  he  must  obtain  a  ticket 
entitling  him  to  one.  For  that  purpose  he  should  apply  to  the 
agent  of  the  company  authorized  to  issue  tickets,  and  there 
urge  his  claim,  if  such  he  had,  to  a  ticket,  because  of  his  former 
payment,  and  not  attempt  its  adjustment  with  the  conductor, 
whose  duty  it  was  to  take  up  and  cancel,  and  not  to  issue, 
tickets.  Had  he  not  presented  the  ticket,  but  claimed  a  pas- 
sage because,  more  than  a  year  before,  he  had  purchased  one, 
and  had  not  used  it,  we  assume  no  one  would  contend  that  he 

1  Crawford  v.  Railway  Co.,  26  Ohio  passenger  having  reasonable  time  to 
St.  580;  Hibbard  v.  Eailway  Co.,  15  find  his  ticket  before  being  ejected 
N.  Y.  455;  Cooper  v.  Railway  Co.,  from  the  train,  see  Maples  v.  Eail- 
L.  R.  4  Exch.  Div.  88.     As  to  the    way  Co.,  38  Conn.  557. 

656 


CH.  III.]  THE    PASSENGEK    CAKEIEk's    LIABILITY.  [§  638. 

was  entitled  to  a  passage,  and  why  ?  Because  public  policy,  as 
well  as  public  sentiment,  would  condemn  a  rule  so  palpably 
unreasonable."  ^  If  because  of  the  fault  of  the  carrier  the  pas- 
senger cannot  comply  with  the  conditions,  he  will  not  forfeit 
his  ticket.^ 

§638.  Tickets  over  connecting  lines. —  These  tickets  are 
usually  issued  with  coupons  attached  for  each  connecting  road 
or  carrier,  and  unless  by  contract  it  appears  otherwise  it  will 
be  held  that  the  initial  carrier  in  the  sale  of  such  a  ticket  is 
acting  as  the  agent  of  the  connecting  carrier.  It  is  not  con- 
templated, nor  does  the  law  require,  unless  it  be  so  stipulated 
in  the  ticket,  that  the  passage  shall  be  continuous,  but  the 
holder  of  such  a  ticket  may  stop  over  at  the  terminus  of  each 
line  as  long  as  he  pleases,  provided  he  commences  his  journey 
over  the  last  connecting  line  within  the  life  of  the  ticket.  And 
so  it  has  been  held  that  it  is  only  required  that  the  holder  of 
such  a  ticket  present  himself  upon  the  vehicle  of  the  last  con- 
necting carrier  and  take  passage  at  a  time  within  that  limited 
by  the  terms  of  the  contract,  and  that  it  is  not  necessary  that 
he  should  complete  the  journey  within  such  time.' 

1  Trezona  v.  Railway  Co.,  107  Iowa,  390.  In  Hill  v.  Railway  Co.,  63  N.  Y. 
22,  43  L.  R.  A.  136;  Bradshaw  v. Rail-  101,  it  was  held  that  "where  a  rail- 
way Co.,  135  Mass.  407,  46  Am.  Rep.  road  passenger  ticket  by  its  terms 
481;  McKay  v.  Railway  Co.,  34  W.  limits  the  time  within  which  it  is  to 
Va.  65,  9  L.  R.  A.  132.  be  used,  it  does  not  exonerate  the 

2 In  Drew  v.  Cent.  Pacific  Ry.  Co.,  holder  from  the  payment  of  fare  if 

51  Cal.  425,  it  was  held  that  "if  a  he  take  passage  on  the  road  after  the 

passenger    who    has     purchased    a  expiration  of  the  time;  and  in  case 

ticket    from    a    railroad   company,  of  his  refusal  to  pay,  the  conductor 

which  is  silent  on  the  subject  of  his  has  a  right  to  eject  him  from  the 

stopping  over,  stops  over  before  he  train."    Wilsey  v.   Railway  Co.,  83 

reaches  the  point  to  which  the  ticket  Ky.  511;  Elmore  v.  Sands,  54  N.  Y. 

entitled  him  to  ride,  he  cannot  re-  512,  held  that  "  a  railroad  company 

sume  his  journey  on  the  ticket;  that  has  a  right  to  provide  and  insist  that 

if  the  passenger  leaves  the  train  be-  its  passenger  tickets  shall  be  used 

fore  he  has  arrived  at  the  point  to  upon  the  day  when  issued;  also,  that 

which  his    ticket    entitled   him  to  every  passenger,   when  entering   a 

ride,  he  voluntarily   terminates  his  train,  shall  pay  his  fare  or  produce  a 

contract  with  the  company  to  carry  ticket  showing  his  right  to  ride  upon 

him  to  such  point."     Citing  Deitrich  that  train;  and  in  enforcing  such  reg- 

V.  Railway  Co.,  71  Pa.  St.  482;  Mc-  ulations,  neither  it  nor  its  employees 

Clure  V.  Railway  Co.,  34  Md.  532;  are  liable." 

Hatton  V.  Railway  Co.,  39  Ohio  St.        3  Lundy  v.  Cent.  Pac.  Ry.  Co.,  66 

379;  Churchill  v.  Railway  Co.,  67  111.  Cal.  191,  56  Am.  Rep.  100;  Evans  v. 
42                                              657 


§§  639,  640.]  CARRIERS    OF   PASSENGERS.  {PART   VI. 

§  639.  Delayed  by  wreck  or  by  the  fault  of  the  car- 
rier.—  But  it  has  been  held  that  "  a  ticket  over  connecting 
roads  limited  as  to  the  time,  but  which  is  a  joint  contract  of 
the  carriers,  entitles  a  passenger  who  is  delayed  by  a  wreck 
on  one  of  the  roads  to  complete  his  journey  although  the  time 
expires  before  he  reaches  the  last  of  the  connecting  roads."  ^ 

§  640.  Tickets,  passes  and  other  transportation  fraudu- 
lently obtained  or  fraudulently  used. —  The  maxim  of  the  law, 
old  as  the  law  of  contracts,  that  "  fraud  vitiates  all  contracts," 
applies  to  the  contracts  or  obligations  to  carry  passengers  as 
effectively  as  to  any  other  contract.  The  passenger  who  pre- 
sents a  ticket,  pass,  or  transportation  for  his  passage  may  be 
generall}'^  said  to  be  entitled  to  be  conveyed  to  the  station  or 
place  mentioned  therein;  but  if  the  ticket  or  transportation 
has  been  obtained  by  fraud,  either  by  himself  or  some  other 
person,  the  carrier  may  refuse  to  honor  it,  and  may  take  it  up 
and  demand  payment  of  fare.  In  Frank  v.  Ingalls  ^  the  court 
say:  "It  thus  seems  to  be  well  established  that  a  railroad 
ticket  is  a  receipt  or  voucher;  it  has  more  the  characteristics 
of  personal  property  than  that  of  a  negotiable  instrument. 
When  the  possession  of  such  a  ticket  has  been  obtained  by 
fraud,  the  company  has  parted  with  the  possession  of  it  but  not 
the  title  to  it,  and  the  person  purchasing  from  the  holder,  al- 
though for  value  and  without  notice  of  equities,  takes  no  bet- 
ter title  than  the  party  had  who  fraudulently  obtained  posses- 
sion of  it."  And  where  a  ticket  was  obtained  by  false  and 
fraudulent  representations,  it  was  held  that  "  the  carrier  would 
be  justified  in  taking  it  up  and  canceling  it." '  One  who  con- 
ceals himself  upon  the  vehicle  and  undertakes  to  beat  his  way 
is  not  entitled  to  passage;  for  whoever  in  any  way,  by  false- 
hood or  by  fraud,  undertakes  to  ride  free  upon  the  carrier's 
conveyance  is  not  a  passenger.*  And  so  a  person  riding  on  a 
free  pass  issued  to  another  person  and  not  transferable,  or  upon 
a  non-transferable  mileage  ticket,  who  falsely  represents  him- 

Railway  Co.,  11  Mo.  App.  463;  Aur-  241  Ohio  St.  560. 

bach  V.  Railway  Co.,  89  N.  Y.  281;  42  3  Moore  v.  Railway  Co.,  41  W.  Va. 

Am.  Rep.  290,  and  see  cases  in  note  160. 

16  L.  R.  A.  471.  4  McVeety  v.  Railway  Co.,  45  Minn. 

1  Gulf,  etc.  R.    Co.   V.    Looney,   85  268,  47  N.  W.  809;  Condran  v.  Rail- 

Tex.  158,  16  L.  R  A.  471  and  notes,  way  Co.,  14  C.  C.  A.  596,  67  Fed.  522. 

658 


CU.  in.]  THE    PASSENGER    CAEKIEr's    LIABILITY.  [§  641. 

self  to  be  the  person  to  whom  it  was  issued,  and  by  way  of 
carrying  out  the  deception  signs  the  person's  name  to  the 
check,  to  whom  the  mileage  or  pass  was  issued,  cannot  be  con- 
sidered to  be  entitled  to  the  rights  of  a  passenger,  and  in  such 
case  the  carrier  may  take  up  the  pass  or  mileage  and  require 
the  person  undertaking  its  fraudulent  use  to  pay  his  fare.  In 
Toledo,  etc.  R.  Co.  v.  Beggs,^  it  was  held  that  "a  party  travel- 
ing in  a  railroad  coach  on  a  free  pass  issued  to  a  different  per- 
son, which  is  not  transferable,  and  passing  himself  as  the 
person  therein  named,  is  guilty  of  such'fraud  as  to  bar  his  right 
to  recover  for  a  personal  injury,  except  for  gross  negligence  on 
the  part  of  the  company  amounting  to  wilful  injury."  And 
the  same  rule  has  been  held  to  apply  to  commutation  mileage 
tickets  upon  which  was  a  printed  notice  that  the  ticket  was 
not  transferable,  and  if  presented  by  any  other  than  the  person 
whose  name  appeared  inside  the  cover,  and  whose  signature  was 
attached  below,  it  would  be  forfeited  to  the  company.^  And 
it  has  been  held  that  if  a  person  knowingly  induces  a  con- 
ductor of  a  railroad  train  to  violate  a  rule  of  the  company  and 
carry  him  without  charge,  he  is  guilty  of.  a  fraud  on  the  com- 
pany and  cannot  claim  the  rights  of  a  passenger.* 

§  641.  Sleeping-car  companies. —  Sleeping-car  companies,  so 
far  as  becoming  responsible  for  the  carriage  of  passengers  and 
their  valuables,  are  not  common  carriers  of  passengers.  As  is 
well  understood,  railroad  companies  are  under  contracts  to 
haul  the  cars  of  sleeping-car  companies,  and  they  alone  are 
liable  to  the  passenger  as  common  carriers  upon  their  contract 

1 85  III.  80.  ,  tation,  or  if  he  rides  upon  a  i)art  of 

2  Way  V.  Chicago,  etc.  Ry.  Co.,  64  the  train  from  which  passengers  are 
Iowa,  48;  and  see  cases  cited  in  opin-  excluded,  or  takes  passage  upon  a 
ion,  p.  52.  Thompson  on  Carriers'  train  not  allowed  to  carry  passen- 
of  Passengers,  43,  sec.  3,  where  the  gers,  knowing  that  his  act  is  against 
author  says  this  doctrine  extends  the  rules  of  the  carrier,  and  in  per- 
farther  and  includes  the  ease  of  mitting  it  the  conductor  is  disobedi- 
one  who  knowingly  induces  the  con-  ent,  he  is  guilty  of  a  fraud  and  not 
ductorof  a  train  to  violate  the  regula-  entitled  to  a  passenger's  ride."'  Cit- 
tions  of  the  company  and  disregard  ing  Toledo,  etc.  Co.  v.  Brooks,  81  111, 
his  obligations  of  fidelity  to  his  em-  245;  Same  v.  Beggs,  85  111.  80;  Rob- 
ployer.  ertson  v.  Railway  Co.,  22  Barb.  91; 

3  McVeety  v.  Railway  Co.,  45  Minn.  Union  Pac.  Ry.  Co.  v.  Nichols,  8  Kan. 
268.  The  court  say:  "But  if  a  per-  505;  Gulf  Ry.  Co.  v.  Camel,  76  Tex. 
son  solicits  and  seeks  free  transj^or-  174,  and  other  cases. 

659 


§  641.]  CARKIEKS    OF   PASSENGERS.  [PAET   VI, 

for  carriage.  The  passenger  rides  upon  the  ticket,  or  permis- 
sion issued  by  the  railroad  company;^  the  railroad  company 
by  its  servants  and  through  its  direction  manages  and  controls 
the  running  of  the  train  and  the  receiving  of  all  passengers 
and  their  effects  upon  it,  and  is  therefore  liable  to  the  passenger 
for  his  baggage  and  valuables  as  a  common  carrier.^  But  while- 
sleeping-car  companies  are  not  liable,  as  has  been  said,  as  com- 
mon carriers,  they  hold  out  to  the  public  that  passengers  who 
pay  an  extra  price  for  riding  in  their  vehicles  will  be  cared  for, 
and  such  baggage  as  is  usually  understood  to  be  hand-baggage 
will  be  looked  after,  especially  when  such  passengers  are  asleep 
in  their  berths,  and  for  this  purpose  the  companies  keep  a  serv- 
ant on  board  the  car  to  attend  to  the  wants  of  passengers  and 
to  keep  watch  over  their  effects  when  the  passenger  is  unable 
to  do  so;  and  while,  as  was  said  by  the  court  in  Blum  v.  Pull- 
man Car  Co.,  above  cited,  "  neither  as  a  common  carrier  nor  as 
an  innkeeper  is  a  sleeping-car  company  responsible,"  still  it 
was  held  that  "  it  must  not  only  furnish  a  berth  to  its  guests, 
but  keep  a  watch  during  the  night,  exclude  unauthorized  per- 
sons from  the  car  and  take  reasonable  care  toward  preventing 
thefts;  and  if  loss  should  occur  by  reason  of  negligence  in  this- 
regard  the  company  is  liable  for  such  articles  as  are  usually 
carried  by  a  passenger  about  his  person,  and  such  a  sum  as  may 
be  deemed  reasonably  necessary  for  traveling  purposes." 

"Where  the  porter  of  a  car  went  to  sleep  during  his  watch 
and  also  left  the  car  at  a  station  with  no  one  on  watch  inside, 
it  was  held  that  the  sleeping-car  company  should  be  held 
liable  for  loss  of  the  passenger's  effects.^  And  so  where  both 
the  conductor  and  the  porter,  being  asleep  at  the  rear  end  of 
the  car  for  two  or  three  hours,  left  the  door  unlocked,  and 
a  brakeman  sitting  in  the  front  end  of  the  car,  during  which 
time  there  was  stolen  from  the  passenger's  berth,  while  he  was 
asleep,  certain  of  his  baggage,  it  was  held  that  the  company 

1  Pullman  Car  Co.  v.  Smith,  73  111.  Pullman  Car  Co.  v.  Pollock,  69  Tex. 

360,  24  Am.  Rep.  258;  Scaling  v.  Pull-  102. 

man  Car  Co.,   24  Mo.    App.  29;   111.  2  Blum  v.  Pullman  Car  Co.,  1  Flip. 

Cent.  Ry.  Co.  v.  Handy,  63  Miss.  609,  500  (C.  C.  W.  D.  Tenn.),  Fed,  Cases 

56  Am.  Rep.  846;  Wing  v.  Sleeping-  1574. 

Car  Co.,  143  Mass.  267,  58  Am.  Rep.  3  Pullman  Car.  Co.  v.  Adams,  120^ 

135;    Woodruff    Sleeping-Car  Co.  v.  Ala.  581,  45  L.  R.  A.  767. 
Deihl,  84  Ind.  474,  43  Am.  Rep.  102; 

660 


<3H.  III.]  THE    PASSENGER    CAKRIEk's    LIABILITY.  [§  641. 

was  liable;  but  the  liability  of  a  sleeping  or  palace-car  com- 
pany is  not  limited  to  the  care  of  the  baggage  and  articles  of 
the  passengers  during  the  night,  but  they  are  liable  at  all  times 
to  exercise  ordinary  vigilance  over  such  property  of  a  pas- 
senger as  would  usually  be  taken  into  the  car  with  him  and  is 
placed  in  the  care  and  custody  of  the  servants  of  the  company. 
As  has  been  said,  the  baggage  for  which  the  company  may 
become  liable,  for  failure  to  exercise  ordinary  diligence  for  car- 
ing for  it,  is  limited  to  what  is  ordinarily  understood  as  hand- 
baggage,  or  articles  which  are  kept  with  the  passenger  upon 
his  journey;  such  as  valises,  overcoats,  umbrellas,  and  that 
which  is  regarded  as  necessary  to  the  comfort  of  the  traveler 
during  his  occupancy  of  the  car.  In  determining  what  may  be 
considered  as  such  baggage,  regard  may  be  had  to  the  plaint- 
iff's station  in  life,  the  length,  purpose  and  probable  duration 
of  the  journey.^  The  liability  of  the  company,  however,  is  not 
that  of  an  insurer  of  the  baggage  of  the  passenger,  but  it  is  in 
the  nature  of  the  liability  of  a  bailee  for  hire.  It  is  said  by  the 
Massachusetts  court  that  "such  a  rule  is  required  by  public 
policy,  and  by  the  true  interests  of  both  the  passenger  and  the 
company."  2  The  liability  being  based  upon  the  negligence  of 
the  servants  of  the  company,  it  therefore  follows  that  the  pas- 
senger's contributory  negligence  would  bar  a  recovery.^  But 
while  the  mere  fact  that  the  passenger  has  been  robbed  when 
asleep  would  not  of  itself  be  evidence  of  negligence,  yet  if  it 
should  appear  that  the  circumstances  of  the  loss  tend  to  show 
that  but  for  the  negligence  of  the  company  or  its  servants  the 
loss  would  not  have  occurred,  2i  prima  facie  case  of  negligence 
would  arise,  and  the  burden  of  proof  of  ordinary  diligence  in 
such  case  would  be  upon  the  company.  As  has  been  said,  "  the 
sleeping  passenger  can  never  know  whether  the  defendant's 
servants  are  keeping  diligent  watch,  and  they  have  the  strong- 
est interest  to  exonerate  themselves  from  any  charge  of  negli- 
gence.    A  rule  that  would  prevent  the  case  from  going  to  the 

iRoot  V.  N.  Y.  Cent.  R.  Co.,  28  Mo.  Whitney  v.   Pullman   Car  Co.,   143 

App.  199;  Hampton  v.  Pullman  Car  Mass.  243;  Wicher  v.  Boston,  etc.  Co., 

Co.,  42  Mo.  App.  134  176  Mass.  275.  57  N.  E.  601;  Levien  v. 

2  Lewis  V.  New  York  Sleeping-Car  Webb,  61  N.  Y.  S.  1113,- 30  Misc.  Rep. 
Co.,  143  Mass.  267,  58  Am.  Rep.  135.  196;  Lycett  v.  Railway  Ca,  42  N.  Y. 

3  Root  V.  Sleeping-Car  Co.,  supra;  S.  413. 

661 


§  642.]  CARRIERS   OF   PASSENGERS.  [pART   VI. 

jury  without  affirmative  proof  that,  at  the  time  when  the  theft 
took  place,  or  at  some  time  during  the  night,  the  defendant's 
servants  were  not  keeping  watch,  would,  in  most  cases,  deprive 
passengers  of  any  redress  for  the  losses  which  they  might  sus- 
tain through  the  negligence  of  such  carriers.  Such  a  rule  is 
not  only  against  reason,  but  is  against  public  policy,  and  ought 
not  to  be  declared."  ^ 

§  64-2.  Not  liable  as  innkeepers. —  Some  of  the  courts  have 
held  that  the  sleeping-car  companies  are  liable  as  innkeepers,^ 
but  the  great  weight  of  authority  is  against  such  a  holding.  As 
was  said  by  the  Kentucky  court,  "a  sleeping-car  is  no  more  an 
inn  on  wheels  than  a  steamboat  is  an  inn  on  water."  *  "  The 
traveler  cannot,  like  the  guest  of  an  inn,  lock  his  door  and 
guard  against  danger."  And  as  has  been  said,  "  the  peculiar 
construction  of  such  cars  .  .  .  the  innkeeper's  right  to  ex- 
clude all  but  guests  and  their  own  servants,  the  company  being 
bound  to  admit  train  employees,  the  inability  of  the  defendant 
to  protect  the  passenger,  the  railroad  conductor  having  power 
to  eject  him  for  non-payment  of  fare  or  violation  of  the  rules 
and  regulations,"  all  these  would  indicate  that  there  is  a 
great  difference  between  the  innkeeper  and  the  sleeping-car 
company.  The  passenger  is  entirely  in  the  care  and  custody 
of  the  servants  of  the  company.  He  lies  down  at  night  and 
sleeps,  not  behind  bolts  and  locks,  but  protected  only  by  the 
servants  of  the  company  who  are  supposed  to  be  on  watch.*  It 
therefore  follows  as  matter  of  course  that  for  thefts  committed 
by  its  servants   the  company  would  be  liable.-^ 

1  Bevis  V.  Railway  Co.,  26  Mo.  App.  710.  25  S.  E.  787.  As  to  right  to  eject 
21.  passengers  holding  tickets  for  sta- 

2  Pullman  Car  Co.  v.  Lowe,  28  Neb.  tions  at  which  trains  do  not  stop,  see 
239,  6  L.  R.  A.  809;  Pullman  Car  Co.  Chicago,  etc.  Co.  v.  Bills,  104  Ind.  13; 
V.  Gaylord.  33  L.  Reg.  (O.  S.)  791.  Atchison,  etc.  Ry.  Co.  v.  Gants,  38 

3  Blum  V.  Pullman  Car  Co.,  supra.     Kan.  608;  Patry  v.  Railway  Co.,  77 
*  Mann    Boudoir  Co.  v.  Dupre,  54    Wis.  218.    In  Shelton  v.  Railway  Co., 

Fed.  646, 21  L.  R.  A.  289.   Sleeping-car  29  Ohio  St.  214,  it  was  held  that  "  a 

company  liable  for  property  stolen  railroad  company  has  the  right  to 

while  in  porter's  care.     Pullman  Car  require  passengers  to  pay  fare,  and 

Co.  V.  Lowe.  28  Neb.  239.     For  coUec-  a  rule  directing  its  conductors  to  re- 

tion  of  cases  see  L.  R.  A.  Index  Di-  move  from  the  cars  those  who  refuse 

gest,  117.  to  comply  with  the  requirement  is 

5  Allen  V.  Railway  Co.,  119  N.  C.  reasonabla" 

663 


CH.  III.]  THE    PASSENGER    CAKKIEli's    LIABILITY.  [§  643. 

III. 

Ejection  of  Passengers  and  Intruders  from  the  Vehicle  of 

THE  Carrier. 
§  643.  The  right  —  The  cause  —  The  manner  —  By  whom. 

A  common  carrier  of  passengers  may  insist  upon  the  passenger, 
or  person  upon  his  vehicle,  complying  with  certain  rules  and 
regulations  that  are  just  and  reasonable,  and  which  must  neces- 
sarily be  complied  with  as  a  fulfillment  of  the  implied  con- 
tract for  carriage  upon  the  part  of  the  passenger.  As,  for  ex- 
ample, one  of  the  evidences  of  the  right  of  the  person  to  be 
carried  is  that  he  has  a  ticket,  or  proffers  the  reasonable  com- 
pensation due  the  carrier  for  transportation;  that  he  conducts 
himself  in  an  orderly  and  decent  manner;  that  he  is  a  fit  per- 
son to  be  carried  and  complies  with  the  just  and  reasonable 
regulations  of  the  carrier;  that  he  has  taken  his  place  in  the 
usual  and  proper  place  for  passengers  upon  the  vehicle  of  the 
carrier.  In  short,  that  he  has  done  that  which  entitles  him  to 
become  a  passenger.  If,  therefore,  the  passenger  refuses  to  com- 
ply with  these  reasonable  regulations,  or  if  the  person  upon  the 
vehicle  of  the  carrier  is  a  trespasser  and  refuses  to  become  a 
passenger  by  compliance  with  such  rules  and  regulations  of 
the  carrier,  such  person  may  be  ejected  from  the  vehicle,  for 
the  law  will  not  hold  the  carrier  to  the  performance  of  his  du- 
ties and  obligations  to  the  public  and  those  whom  he  carries  as 
passengers,  and  at  the  same  time  deprive  him  of  the  right  to 
insist  upon  compliance  upon  the  part  of  those  whom  he  carries 
with  such  just  and  reasonable  regulations  as  are  necessary  in 
order  to  make  it  possible  for  the  carrier  to  do  his  duty  to  the 
passenger  and  to  the  public.  There  is,  as  we  have  seen,  not 
only  an  implied  contract  on  the  part  of  the  carrier  to  carry  the 
passenger  safely,  and  to  exercise  that  high  degree  of  diligence 
which  the  law  lays  upon  him,  but  there  is  also  an  implied  ob- 
ligation upon  the  part  of  the  passenger  that  he  will  comply 
with  all  the  just  and  reasonable  regulations  of  the  carrier.  In- 
volved, therefore,  in  the  question  of  liability  for  ejecting  a  pas- 
senger, or  an  intruder,  or  trespasser  from  the  vehicle  of  the 
carrier,  is  not  only  the  right  of  the  carrier  to  do  so,  but  the 
cause  for  which  it  is  done,  the  manner  in  which  it  is  done,  and 
the  authority  of  the  servant  or  person  who  does  it. 

663 


§§  644,  645.]  CARRIERS    OF    PASSENGERS.  [PART    VI. 

§  64:4-.  The  causes  numerous. —  It  would  hardly   be 

possible  here  to  enumerate  the  causes  for  which  the  carrier 
might  expel  the  passenger.  It  may  be  said,  however,  generally, 
that  when  a  person  is  once  accepted  as  a  passenger  he  cannot 
be  expelled  except  for  some  misconduct;  as  for  refusal  to  pro- 
duce a  ticket  or  pay  his  fare,  for  drunkenness,  disorderly  con- 
duct, for  practicing  or  committing  offenses,  for  crimes  or  mis- 
demeanors upon  other  passengers;  as,  for  example,  stealing 
from  them,  picking  pockets,  gambling,  and  the  like,  being  af- 
flicted with  a  contagious  disease,  or  in  general  for  refusing  to 
comply  with  the  reasonable  rules  and  regulations  of  the  car- 
rier. And  so  it  has  been  held  that  the  conductor  of  a  train  is 
authorized  to  put  off,  without  using  unnecessary  force,  a  pas- 
senger whose  ticket  calls  for  a  station  at  which  he  knows  that 
the  train  does  not  stop,  the  passenger  refusing  to  pay  his  fare, 
although  such  passenger  has  been  informed  by  the  conductor 
of  another  train  that  if  he  boards  the  train  the  conductor  would 
be  obliged  to  let  him  off  at  his  station.^  "  A  passenger  on  a 
railroad  train  must  show  his  ticket,  or  conductor's  check  given 
in  the  ticket's  place,  when  called  on  by  the  conductor,  and  if 
he  fails  to  do  so,  whether  wilfully  or  because  he  has  forgotten 
having  the  ticket  or  check,  and  refuses  to  pay  fare,  he  cannot 
recover  damages  for  his  ejection  if  unnecessary  force  is  not 
used."  2  This  is  undoubtedly  the  prevailing  rule.  And  where 
a  father  refused  to  pay  the  fare  of  his  child,  who  was  eight 
years  of  age  and  liable  to  pay  fare, it  was  held  "that  the  law 
implies  a  contract  on  the  part  of  a  parent  who  enters  a  rail- 
road train  with  a  child  non  sui  jtirns,  and  subject  to  payment 
of  fare,  to  pay  the  fare  of  such  child,  and  upon  refusal  to  do  so 
the  railroad  company  has  the  right  to  eject  both  the  father 
and  the  child  from  the  train."  ^ 

§  645.  Passenger's   reliance   upon   statements   and 

promises  of  servants  and  agents  of  the  carrier. —  The  passen- 

1  Price  V.  Eailway  Co.,  46  W.  Va.  under  his  care  will  justify  his  expul- 

538,  33  S.  E.  255  Trezona  v.  Railway;  sion  though  he  himself  is  a  minor. 

Co.,  107   Iowa,  22;  111.  Cent.  R.  Co.  v.  Warfield  v.  Railway  Co.,  104  Tenn. 

Bauer,  66  111.  App.  134.  74;  Lake  Shore,  etc.  R.  Co.   v.  Orn- 

•■^Braun   v.  Railway   Co.,  79   Minn,  dorff,  55  OhioSt.  589,  38  L.  R.  A.  140; 

404,  82  N.  W.  675;  Price  v.  Railway  Philadelphia,  etc.  R.  Co.  v.  Hoeflict, 

Co.,  46  W.  Va.  538.     A  passenger  s  62  Md.  300,  50  Am.  Rep.  223. 
failure  to  pay  the  fare  of  a  child 

664 


OH.  III.]  THE    PASSENGER    CARRIEr's    LIABILITY.  [§  645. 

ger,  as  a  general  rule,  is  in  the  bands  of  the  servants  of  the 
carrier,  and  has  a  right  to  rely  upon  the  statements  and  con- 
<luct  of  such  servants,  where  such  statements  or  conduct  are 
not  clearly  and  palpably  unreasonable.  But  while  the  passen- 
ger has  the  right  to  so  rely  u'^on  these  statements,  it  has  been 
generally  held  that  conductors  are  not  bound  to  rely  upon  the 
statements  of  other  conductors,  or  even  agents  at  the  stations, 
communicated  to  them  by  the  passenger.  And  so  where  pas- 
sengers have  been  ejected  from  the  train  of  the  carrier  for  the 
reason  that  a  former  conductor  had  taken  up  his  ticket  and 
failed  to  issue  to  him  a  check,  or  other  evidence  that  he  was 
entitled  to  be  conveyed,  the  courts  have  held  that  the  con- 
ductor so  ejecting  the  passenger  was  not  guilty  of  breach  of 
duty,  but  that  the  railroad  company  might  be  liable  because 
of  the  action  of  the  former  conductor;  as  where  it  was  a  regu- 
lation of  a  railroad  company  that  one  who  pays  his  fare  be- 
tween two  points  on  the  road,  but  desires  to  stop  over  at  an 
intermediate  point,  is  required  to  procure  a  stop-over  ticket 
from  the  conductor  and  present  it  to  the  conductor  of  the 
train  on  which  he  seeks  to  complete  his  journey  as  evidence  of 
his  right  to  do  so. 

And  "where  a  passenger  asks  the  proper  conductor  for  a 
stop-over  ticket,  and,  through  the  conductor's  fault,  receives, 
instead  thereof,  only  a  trip  check,"  it  was  held  that  "  such  a 
regulation  was  a  reasonable  one,  and  that  the  second  conductor 
may  still  demand  of  him  the  additional  fare,  and  upon  his  re- 
fusal to  pay  it  may  eject  him  from  the  train  at  some  usual  stop- 
ping place,  using  no  unnecessary  force;  and  that  such  ejection 
will  be  no  ground  for  recovery  against  the  company,  though 
such  company  will  be  liable  to  the  passenger  for  the  fault  of 
the  first  conductor."  ^  But  upon  this  question  the  authorities 
are  not  entirely  harmonious.  In  the  case  of  G^Hourhe  v.  liail- 
way  Co?  the  authorities  have  been  collected  in  the  opinion  of 

1  Yoi-ton  V.  Railway  Co.,  54  Wis.  expulsion  of  a  passenger  by  a  con- 

284;  Van  Dusan  v.  Railway  Co.,  97  ductor,  who  had  no  ticket  because  it 

Mich.  439;  Hufford  v.  Railway  Co.,  had  been  taken  up  by  another  con- 

h'.\   Mich.  118.     A  passenger    is  not  ductor,  renders    the    carrier  liable, 

called  upon  to  question  the  right  of  Sloan  v.  Railway  Co.,  Ill  Cal.  320,  33 

&  conductor  in  taking  up  a  ticket  in  L.  R.  A.  193;  and  see  notes  and  briefs, 
order  to  preserve  the  right  to  be  car-        ^  103  Tenn.  134,  4G  L.  R.  A.  G14. 
ried  to  destination.     The  wrongful 

665 


§   646.]  CAKRIERS    OF    PASSENGERS.  [PART   VI. 

the  court  and  discussed,  and  after  citing  authorities  ^ro  and  con 
the  court  say:  "We  concur  in  the  latter  view,  and  hold  that  a 
person  who  makes  a  valid  contract  is  entitled  to  passage  ac- 
cording to  its  terms,  though  the  face  of  the  ticket  furnished 
him  may  not  in  any  true  sense  express  the  contract.  It  is  the 
contract  and  not  the  ticket  that  gives  the  right  to  transporta- 
tion. The  ticket  is  but  an  evidence  of  the  contract  made  out 
and  furnished  by  the  carrier,  and  if  it  fail  to  disclose  the  true 
contract,  the  fault  is  with  the  carrier,  and  it  is  responsible  for 
the  natural  consequences  of  the  variance."  ^ 

But  where  a  passenger  was  ejected  from  a  street-car  to 
which  he  had  transferred  from  another  car,  because  his  trans- 
fer check's  were  improperly  punched  by  the  conductor  of  the 
first  car,  it  was  held  that  the  carrier  was  liable,  and  that  the 
passenger  could  recover  therefor,  where  on  the  refusal  of  the 
second  conductor  to  accept  the  transfer  check,  and  before  he 
was  ejected,  the  passenger  made  a  statement  to  the  conductor 
showing  that  the  fault  in  the  ticket  was  due  to  the  negligence 
of  the  first  conductor.-  And  where  the  passenger  was  in- 
duced by  the  fault  of  the  station  agent  to  take  a  train  not 
scheduled  to  stop  at  his  destination,  it  was  held  he  was  en- 
titled to  recover  upon  ejection  from  the  train  "  before  reach- 
ing his  destination  as  for  a  tort,  and  not  merely  for  breach  of 
contract."  ^ 

§  646.  Tendering  fare  to  avoid  ejection. —  It  seems  to  be 
generally  conceded  by  the  authorities  and  the  courts  that 
when  the  train  is  stopped  for  the  express  purpose  of  ejecting  a 
passenger  who  has  refused  to  pay  his  fare,  or  produce  a  ticket^ 
or  check,  or  permission  from  the  carrier  for  his  convej^'ance, 
it  is  too  late  for  him  to  pa}'^  or  tender  his  fare,  and  that  the 
carrier  can  refuse  to  allow  him  to  ride  upon  the  train,  and,  if 
he  has  been  ejected,  to  admit  him  again  upon  the  train.  This 
has  been  held  although  the  train  was  stopped  at  a  station 
where  it  is  not  scheduled  to  stop.  If,  however,  the  passenger 
is  carried  to  a  regular  stopping  station  of  the  train  and  there 

1  For  authorities  cited,  see  46  L.  R.  St.  370;  Pennington  v.  lit  Cent.  Ry. 
A.,note, p.  614,  andoiiinion.  p.  615,  etc.  Co.,  69  111.   App.   628;   Ellsworth  v. 

2  O'Rourke  v.  Street  Ry.  Co.,  103  Railway  Co.,  95  Iowa,  98,  24  L.  R  A. 
Tenn.  124,  46  L.  R.  A.  614.  173. 

3  Reynolds  v.  Railway  Co.,  55  Ohio 

G66 


CH,  III.]  THE    PASSENGER    CAKKIEK^S    LIABILITY.  [§  647. 

ejected,  he  may  procure  a  ticket  or  again  board  the  train  and 
pay  his  fare  and  is  entitled  to  be  carried.  The  distinction 
seems  to  be  that  he  is  not  entitled  to  be  carried  where  the  train 
is  stopped  for  the  express  pui^pose  of  putting  him  off;  and  the 
same  rule  has  been  applied  before  the  ejection  if  the  train  has 
been  stopped  for  the  express  purpose  of  ejecting  the  passenger.^ 
The  passenger,  however,  is  entitled  to  reasonable  time  if  he 
alleges  that  he  had  a  ticket  which  is  lost,  or  if  there  is  hesita- 
tion as  to  his  payment  and  he  seems  willing  to  pay,  or  where 
he  proposes  to  obtain  the  money  from  another  passenger;  the 
rule  would  seem  to  be  that  where  there  is  no  wilful,  or  at  least 
positive,  refusal  to  pay  the  fare,  the  conductor  would  be  bound 
to  receive  the  fare  from  a  third  person  if  offered  before  the 
ejection  of  the  passenger  who  has  no  ticket  or  money.  At 
all  events,  the  conductor  should  not  hastily  take  steps  to  eject 
the  passenger  who  seems  to  be  endeavoring  to  comply  by  the 
production  of  a  ticket,  or  the  payment  of  the  money,  or  who 
does  not  refuse  to  comply  with  his  request.^ 

§  647,  The  manner  of  ejecting. —  ISTo  matter  for  what 

cause  the  passenger  is  ejected,  the  conductor  or  servants  of  the 
company  must  use  no  more  force  than  is  necessary,  and  under 
no  circumstances  will  they  be  excused  for  ejecting  a  passenger 
while  the  train  is  running  at  a  rate  of  speed  that  might  en- 
danger his  life  or  limb.  And  this  rule  obtains  even  though 
the  passenger  is  a  trespasser  or  an  intruder  upon  the  vehicle  of 

1  Pease  v.   Railway  Co.,   11    Daly  Railway  Co.,  sitpra.    But  if  the  train 

(N.  Y.),  350;  Cincinnati,  etc.  R.  Co.  v.  is  not  stopped  purposely  at  the  sta- 

Skillman,  39  Ohio  St.  445;  O'Brien  v.  tion  to  put  him  off,  he  may  pay  the 

Railway  Co.,  15  Gray,  20,  77  Am.  Dec.  fare.     Gould  v.  Railway  Co.,  18  Fed. 

347;   Hoffbauer   v.    Railway  Co.,  52  155:  Stone  v.  Railway  Co.,  47  Iowa.  82. 

lowa^   342,  35  Am.    Rep.   278.     But  2  Texas,  etc.  Co.  v.  Bond,  62  Tex. 

wliere  the  train   has  stopped  at  a  442,  50  Am.  Rep.  532;  Louisville  R. 

regular  stopping  place,  an  offer  to  Co.  v.  Garrett,  8  Lea,  438,  41  Am. 

pay  fare  before  a  passenger  is  ejected  Rep.  640.     And  in  California  it  was 

must  be  accepted.     O'Brien  v.  Rail-  held  that  a  tender  by  a  passenger  of 

way  Co.,  80  N.  Y.  236     But  if  the  the  remainder  of  his  fare  is  in  time, 

train  does  not  regularly  stop  at  the  although  the  train  has  stopped  for 

station  and  is  stopped  for  the  pur-  the  purpose  of  ejecting  him,  where 

pose  of  expelling  him,  he  is  not  en-  the  money  which   he  had   already 

titled  to  prevent  his  expulsion  and  paid  to  the  conductor  had  not  been 

continue  his  passage  on  that  train  returned.     Bland  v.  Railway  Co.,  5~> 

by  tendering  fare.     Pickens  v.  Rail-  Cal.  570.     See  also  Georgia,  etc.  Co. 

way  Co.,  104  N.  C.  312;  O'Brien  v.  v.  Asmore,  88  Ga.  529,  16  L.  R.  A.  53. 

667 


§  64S.]  CAKKIEKS    OF    PASSENGEKS.  [PAET    VI. 

the  carrier.  And  so  it  has  been  held  that  a  carrier  is  liable 
for  an  injury  sustained  by  the  malicious  and  wilful  act  of  its 
brakeman  in  expelling  one  who  is  a  trespasser  from  the  train.^ 
It  has  been  held  that  indecent,  insulting  and  vulgar  language 
of  a  passenger,  unaccompanied  by  threats,  does  not  justify  the 
conductor  in  assaulting  him;  that  he  may  use  sufficient  force 
to  eject  him  but  no  more.^ 

§  648.  The  condition  of  tbe  passenger  must  be  taken  into 
account. —  The  actions  of  the  servants  of  the  company  in  eject- 
ing a  passenger  must  be  humane;  and  w^here  the  passenger  is 
afflicted  with  sickness  or  any  physical  disability,  or  even  is  in- 
toxicated and  not  in  a  condition  to  look  out  for  his  own  safety 
the  carrier  is  bound  to  take  all  this  into  account  and  to  treat 
the  passenger  accordingly.  And  so  it  has  been  held  "  that  the 
drunken  condition  of  a  passenger  would  not  excuse  a  carrier 
from  liability  for  negligently  leaving  him  exposed  on  a  rail- 
road track,  where  he  had  fallen  from  the  train  through  the 
carrier's  fault,  and  was  in  consequence  dazed  and  his  mental 
faculties  impaired  in  consequence  of  the  fall."^ 

Where  a  street-car  conductor,  supposing  that  the  passenger 
was  drunk,  but  in  fact  he  was  stricken  with  apoplexy,  removed 
him  from  the  car  in  a  helpless  condition  and  laid  him  in  the 
street  on  a  bleak,  drizzling  day  and  there  abandoned  him,  it 
was  held  the  company  was  liable.  And  so,  as  we  have  seen, 
the  general  rule  is  that  the  refusal  of  a  passenger  to  pay  his 
fare  will  not  justify  any  act  which  would  put  human  life  in 

1  St.  Louis  V.  Kilpatrick,  67  Ark.  Quigley  v.  Railway  Co.,  11  Nev.  350; 
47;  Southern  Ry.  Co.  v.  Wildman,  N.  J.  etc.  Co.  v.  Brockett,  121  U.  S. 
119  Ala.  565;  Brennan  v.  Railway  637.  If  the  conductor,  acting  in  the 
Co.,  72  Mo.  App.  107:  Mclver  v.  Rail-  performance  of  his  duty,  exceeds  the 
way  Co.,  110  Ga.  223;  Chicago,  etc.  degree  of  force  necessarj' and  in  jury 
Co.  V.  Casazza,  83  111.  App.  421.  In-  results,  tlie  company  is  liable.  Jack- 
decent,  insulting  language  of  a  pas-  son  v.  Railway  Co.,  47  N.  Y.  44.  See 
senger,  unaccompanied  by  threats  or  note  to  Southern,  etc.  Co.  v.  Sanford, 
violence,  will  not  justify  assault.  11  L.  R.  A.  432;  Lafitte  v.  Railway 

2  Weber  v.  Railway  Co.,  62  N.  Y.  Co.,  43  La.  Ann.  34,  13  L.  R.  A.  237. 
Sup.  1.  When  the  force  used  to  *  Cincinnati,  etc.  R.  Co.  v.  Cooper, 
eject  amounts  to  wanton  assault,  the  120  Ind.  469,  6  L.  R  A.  241.  See 
fact  as  to  whether  the  plaintiff  was  Louisville,  etc.  Co.  v.  Logan,  88  Ky. 
rightfully  or  wrongfully  upon  the  232,  3  L.  R.  A.  80;  Mo.  Pac.  R.  Co.  v. 
train  Is  not  an  element  in  the  ques-  Evans,  71  Tex.  361,  1  L.  R,  A.  476: 
tion  of  mere  recovery.  Toledo,  etc.  Roseman  v.  Railway  Co.,  112  N.  C 
Co.  V.  Marsh,  17  Ohio'c.  C.  Rep.  379;.  709,  19  L.  R.  A.  327. 

668 


en.  III.]  THE    PASSENGER    CAKRIEe's    LIABILITY.       [§§  649-651. 

peril;  and  the  passenger  has  a  right  to  repel  an  attempt  to 
eject  him  in  order  to  save  his  own  life,  or  to  save  himself  from 
great  bodil}''  injury,  because  of  the  unjustifiable  assault  of  the 
conductor.^  v 

YI. 

When  the  Carrier  is  Excused. 

When  the  injury  or  loss  is  caused  by  the  act  of  God  or  the 
public  enemy,  or  occasioned  by  the  fault  of  the  party  injured, 
that  is,  where  he  has  been  guilty  of  contributory  negligence^ 
the  carrijer  will  be  excused. 

§  649.  When  caused  by  the  act  of  God. —  The  carrier  will 
not  be  held  liable  when  the  injury  or  loss  is  the  immediate  re- 
sult of  the  act  of  God,  i.  e.,  the  immediate  result  of  natural 
causes  "  without  the  intervention  bf  man,  and  could  not  have 
been  prevented  by  the  exercise  of  prudence,  diligence  and  care 
and  the  use  of  those  appliances  which  the  situation  of  the  party 
renders  it  reasonable  that  he  should  employ."  ^ 

§  650.  The  public  enemy. — And  so  if  the  injury  or  loss  be 
the  direct  and  immediate  cause  of  an  act  of  the  public  enemy, 
the  carrier  is  not  liable. 

§651.  Contributory  negligence. —  If  the  negligence  of  the 
passenger  has  materially  contributed  to  the  loss  or  injury,  and 
to  an  extent  that  it  may  be  said  to  be  the  proximate  and 
natural  cause  of  the  injury,  there  can  be  no  recovery  therefor. 
The  principle  is  well  settled  that  one  cannot  recover  for  an 
injury  brought  upon  himself  by  his  own  fault.  "Regarding 
the  case  of  negligent  injury,  the  general  result  of  the  author- 
ities seems  to  be  that  if  the  plaintiff  or  party  injured,  by  the 
exercise  of  ordinary  care,  under  the  circumstances,  might  have 
avoided  the  consequences  of  the  defendant's  negligence,  but 
did  not,  the  case  is  one  of  mutual  fault,  and  the  law  will 
neither  cast  all  the  consequences  upon  the  defendant  nor  will 
it  attempt  any  apportionment  thereof."  *  The  English  rule, 
which  is  generally  followed  in  this  country,  may  be  said  to  be 

1  Connolly  v.  Street  Car  Co.,  41  La.  where  cases  are  collected;  Wald  v. 
Ann.  57;  Hoffman  v.  Railway  Co.,  87  Pittsburg,  etc.  R.  Co.,  162  III.  545;  43 
N.  Y.  24;  Lynch  v.  Railway  Co.,  90  Cent.  Law  Jour.  423  (Johnstown 
N.  Y.  77;  New  Jersey  v.  Brockett,  Flood  Cases). 

121  U.  S.  637.  3  Cooley  on  Torts,  675. 

2  See  note,  43  Cent.  Law  Jour.  427, 

6G9 


§  652.  j  CAREIEES    OF    PASSENGERS.  [PART   VI. 

as  stated  in  Tuff  v.  Warmam,^  that  the  mere  negligence  or  want 
of  ordinary  care  and  caution  would  not  disentitle  an  injured 
person  to  recover  unless  it  were  such  that  but  for  that  negli- 
gence and  want  of  ordinary  care  and  caution  the  misfortune 
could  not  have  happened;  or  if  the  negligence  of  the  injured 
person  might,  by  the  exercise  of  care  on  the  part  of  the  defend- 
ant, have  been  avoided  and  the  injury  not  inflicted.  Applying 
these  principles  to  the  subject  in  hand,  it  may  be  said  that  the 
passenger  who  seeks  to  recover  for  an  injury  occasioned  by 
the  negligence  of  the  carrier  must  show  not  only  that  the  car- 
rier's negligence  was  the  proximate  cause  of  the  injury,  but 
that  he  was  exercising  ordinary  care.^  Upon  this  question  the 
courts  of  the  several  states  do  not  entirely  agree.  Many  of 
the  courts  hold  that  it  is  not  incumbent  upon  the  plaintiff  to 
allege  this  or  to  prove  it  in  order  to  make  out  a  jprima  facie 
case.^ 

§  652.   Strangers,  trespassers,   intruders. —  While, 

as  we  have  seen,  the  carrier  is  not  bound  to  exercise  that  high 
degree  of  diligence  toward  a  stranger,  or  trespasser,  or  intruder, 
that  the  law  demands  he  shall  exercise  toward  a  passenger, 
still  humanity  demands  that  he  should  exercise  such  a  degree 
of  care  as  to  not  unnecessarily  cause  damage  or  injury  to  such 
a  person;  and  so  it  follows  that  if  the  carrier  is  guilty  of  a  de- 
gree of  negligence  that  a  common  respect  for  the  laws  of  hu- 
manity would  not  tolerate,  he  would  be  guilty,  in  an  action 
for  the  injury,  and  it  would  be  no  defense  that  the  person  in- 
jured was  a  trespasser,  or  a  stranger,  or  an  intruder.  As,  for 
example,  the  carrier  would  not  be  warranted  in  placing  such  a 
person  upon  his  vehicle  in  a  position  where  he  would  be  obliged 
to  leap  from  the  train  when  it  was  in  motion  to  save  himself 
from  other  injuries,  and  if  he  did  so,  it  could  not  be  said  that 
in  thus  leaving  the  train  he  was  guilty  of  contributory  negli- 
gence.* And  where  the  conductor  ordered  a  person  to  get  off 
the  train  while  running  at  a  speed  which  would  endanger  him 
in  getting  off,  refusing  to  stop  the  train  to  allow  him  to  alight, 
and  with  violent  and  insulting  language  threatened  to  eject 

1 5  C.  B.  (N.  S.)  573,  585.  3  Poat,  %%  832,  833. 

2  North  Chicago  Street  R  Co.  v,  ■»  Southern  Ry.  Co.  v.  Hunter,  74 
Baur,  179  111.  126,  45  L.  R  A.  108.  Miss.  444;  Great  Western  R  Ca  v. 
And  see  long  list  of  authorities  cited.     Miller,  19  Mich.  305. 

670 


CU.   III.]  THE    PASSENGER    CARRIER'S    LIABILITY.       [§§  653,  654, 

him  from  the  train  by  force  if  his  orders  were  not  obeyed,  and 
had  force  at  his  command  to  execute  such  threat,  and  the  per- 
son jumped  from  the  train  to  avoid  ejection  by  force,  it  was 
held  "  that  this  was  sufficient  compulsion  or  show  of  force  to 
excuse  the  person  from  the  charge  of  contributory  negligence 
in  so  jumping  from  the  train."  ^ 

§  653.  Failure  to  warn  passengers  of  danger. —  It  is  a 

general  rule  that  a  passenger  must  exercise  ordinary  care  and 
diligence  in  avoiding  injury.  But  while  this  is  true,  it  may  be 
said  that  it  is  the  duty  of  the  carrier  to  warn  the  passenger  as 
to  dangerous  situations,  and  failing  to  do  so,  the  carrier  will 
not  be  permitted  to  defend  upon  the  ground  of  contributory 
negligence  upon  the  part  of  the  passenger  in  an  action  for  an 
injury  received  because  of  such  danger.  This  duty  to  w^arn  the 
passenger  against  danger  does  not  apply,  of  course,  to  every 
case.  The  circumstances  of  the  particular  case  are  to  be  taken 
into  consideration.  As,  for  example,  where  a  passenger  cannot 
be  said  to  understand  the  danger  of  his  situation,  or  where  the 
passenger  is  a  young  person,  inexperienced  and  not  aware  of 
the  danger  in  which  he  is  placing  himself;  or  one  who  is  some- 
what demented  or  even  intoxicated,  or  deaf  and  dumb  or  blind ; 
such  persons  require  more  attention,  and  the  duty  of  the  car- 
rier is  to  extend  to  them  greater  care  than  to  the  ordinary  pas- 
senger. These,  of  course,  are  but  examples.  Each  case  must 
stand  upon  its  own  particular  circumstances.- 

§  654.  A  question  of  fact  for  the  jury  or  of  law  for 

the  court. —  As  we  have  seen,  the  plaintiff,  in  order  to  recover 
in  an  action  brought  for  personal  injury,  must  not  only  prove 
that  the  injury  was  the  proximate  result  of  negligence  upon 
the  part  of  the  carrier,  but  he  is  also  bound  to  prove,  in  those 
states  holding  it  necessary,  that  he  was  exercising  ordinary 
care,  and  that  in  the  exercise  of  such  ordinary  care  the  in- 
jury could  not  be  avoided.  These  questions  must  necessarily 
be  left  to  the  jury  for  their  findings.^     The  question  of  contrib- 

1  Bogges  V.  Railway  Co.,  37  W.  Va.  burg,  etc.  R.  Co.  v.  Caldwell,  74  Pa. 
297,  23  L.  R.  A.  777.  St.  421. 

2  Louisville,  etc.  R.  Co.  v.  Johnston,  ^  McQuilten  v.  Railway  Co.,  64  Cal. 
108  Ala.  62,  31  L.  R.  A.  372;  Isbell  v.  463;  Reddington  v.  Traction  Co.,  132 
Railway  Co.,  27  Conn.  393,  71  Am.  Pa.  St.  150;  Sonier  v.  Railway  Co., 
Dec.  78;  Brennan  v.  Fairhaven,  45  141  Mass.  10;  Palmer  v.  Railway  Co., 
Conn.  298,  29  Am.  Rep.  679;  Pitts-  87  Mich.  281.     But  see  post,  %  833. 

671 


§  655.]  CAEKIEKS    OF    PASSENGERS.  [PART   VI, 

utory  negligence  should  always  be  submitted  to  the  jury  as  a 
question  of  fact  where  the  testimony  is  conflicting  and  the  case 
is  not  free  from  doubt  upon  the  facts,  or  where  candid  and  in- 
telligent men  might  reach  different  conclusions  upon  the  facts.^ 
Where,  however,  "  facts  which  constitute  contributory  negli- 
gence are  not  disputed,  the  question  is  one  purely  of  law."  And 
where  the  uncontradicted  testimony  shows  that  the  injured 
party  was  negligent,  it  is  a  question  of  law  for  the  court 
whether  he  was  guilty  of  such  contributory  negligence  as  would 
defeat  the  action.-  And  it  has  been  held  that  to  warrant  the 
court  in  any  case  in  instructing  the  jury  that  the  plaintiff  was 
guilty  of  negligence,  the  case  must  be  so  clear  against  him  as 
to  warrant  no  other  inference.' 

§  655.  Whether  a  question  of  law  or  fact. —  As  to 

whether  certain  facts  which  are  shown  to  exist  in  a  given  case, 
without  question  or  dispute,  are  sufficient  to  constitute  negli- 
gence or  diligence  is  a  question  of  law  for  the  court;  ^vhether 
these  facts  actually  exist  in  the  given  case  —  whether  they  are  in 
fact  true, —  is  a  question  of  fact  for  the  jury.  And  so  it  follows 
that  the  question  of  diligence  or  negligence  is  generally  one  of 
mixed  law  and  fact.  The  admission  of  proof  proposed,  the  effect 
of  the  evidence  if  adduced,  would  be  questions  of  law  for  the 
court.  The  weight  of  the  testimony  given,  its  sufficiency  to  prove 
negligence  or  diligence,  is  a  question  of  fact  for  the  jury. 

In  Gardner  v.  Railroad  Co}  the  court  say :  "  The  question 
of  neffliffence  is  one  of  law  for  the  court  onlv  where  the  facts 
are  such  that  all  reasonable  men  must  draw  the  same  conclusion 
from  them,  or,  in  other  words,  a  case  should  not  be  withdrawn 
from  the  jury  unless  the  conclusion  follows  as  matter  of  law 
that  no  recovery  can  be  had  upon  any  view  which  can  be 
properly  taken  of  the  facts  the  evidence  tends  to  establish." 

Where  the  case  upon  the  facts  is  not  81  Mich.  43;  Grand  Trunk  R.  Co.  v. 

free  from  doubt,  the  court  should  Ives,  144  U.  S.  408. 
submit  the  question  of  negligence  to        '^  Melzer  v.  Peninsular  Car  Co.,  7& 

the  jury.     Sheldon  v.  Railway  Co.,  Mich.  94;  Apsey  v.  Railway  Co.,  83 

59  Mich.  172.     The  question  of  negli-  Mich.  440. 

gence,  where  the  testimony  is  not  '^  Detroit,  etc.  R.  Co.  v.  Van  Stein- 
conflicting,  is  for  the  jury.  Myning  berg,  17  Mich.  99;  Hutch,  on  Car.  639. 
V.  Railway  Co.,  64  Mich.  93.  *  150  U.  S.  349-361;  Railway  Co.  v. 
iLuke  V.  Wheat  Mining  Co.,  71  Ives,  144  U.  S.  408-417;  Railway  Co. 
Mich.  364;  Dundas  v.  Lansing,  75  v.  Cox,  145  U.  S.  593,  606;  Sadowski 
Mich.  499;  Underbill  v.  Railway  Co.,  v.  Car  Co.,  84  Midi.  100. 

673 


CH.  III.]  THE    PASSENGER    CARKIER's    LIABILITY.  [§  055. 

The  court,  in  Railroad  Co.  v.  Miller,  say:  "It  is  frequently 
difficult,  perhaps  sometimes  impossible,  to  determine  how  far 
the  question  of  negligence  or  reasonable  diligence  is  a  question 
of  law,  and  how  far  a  question,  of  fact.  It  is  generally  a  ques- 
tion of  mixed  law  and  fact;  and  always,  when  the  facts  are 
found  or  admitted,  if  they  be  such  that  all  reasonable  men  w^ill 
be  likely  to  draw  from  them  the  same  inferences,  it  is  a  question 
of  law  for  the  court.  But  I  know  of  no  case  in  which  it  can  be 
said  with  accuracy  to  be  exclusively  a  question  of  fact  for  the 
jury;  some  principle  of  law  will  always  be  applicable  to  the 
particular  state  of  facts,  and  may  be  laid  down  by  the  court; 
the  principle  may  sometimes  be  very  general  and  abstract,  but 
there  is  still  a  legal  principle  involved."^ 

The  test  seems  to  be,  would  different  minds  honestly  draw 
different  conclusions  from  the  state  of  facts  submitted?  If  they 
would,  then  the  question  must  be  submitted  to  the  jury;  but 
if  the  minds  of  ordinary  men  could  draw  from  the  facts  only 
one  conclusion  —  if  there  is  no  dispute,  no  different  opinion, — 
then  the  question  would  be  for  the  court;  but,  as  has  been  said, 
it  is  exceedingly  difficult  to  find  a  state  of  facts  where  the 
question  as  to  negligence  or  diligence  would  be  entirely  one 
of  law  for  the  court.  It  is  clearly  a  mixed  question  of  law 
and  fact. 

Certain  acts,  when  proven  and  not  disputed  or  admitted, 
have  been  held  to  be,  as  matter  of  law,  negligence;^  and  yet 
upon  an  examination  of  the  cases  we  are  led  to  conclude  that 
no  fixed  rule  can  be  laid  down  that  will  at  all  times  and  under 
all  circumstances  govern  the  question.  As,  for  example,  it  is 
generally  conceded  that  jumping  from  a  moving  train  is  neg- 
ligence, but  very  much  depends  upon  the  rate  of  speed  at  which 
the  train  or  car  is  moving,  and  the  person  who  jumps  from  it. 
If  one  should  jump  from  a  train  going  at  such  a  rate  of  speed 
that  it  would  be  conceded  by  all  to  be  hazardous  and  impru- 
dent, when  every  reasonably  prudent  man  would  say  it  was 
frauglit  with  danger,  unquestionably  the  court  would  be  war- 
ranted in  saying  it  was  negligent.    The  supreme  court  of  Penn- 

125  Mich.  274;  Schoeppcr  v.  Han-  troit  R.  Co.  v.  Van  Steinberg,  17 
cock,  etc.   Co.,  113  Mich.   582;  Lilli-    Mich.  99. 

bridge   v.    McCann,    117    Mich.    84;        2  McQuilten  v.  Railway  Co.,  64Cai. 
Cooley  on   Torts  (2d  ed.),  812;   De-    403. 
43  073 


§  656.]  CAKEIEES    OF    PASSENGERS.  [PAET    VI. 

sylvania,  in  Jaggcrs  v.  Bailioay  Co.^  held  that  jumping  from  an 
electric  car  moving  at  the  rate  of  four  or  five  miles  an  hour  is 
contributory  negligence  as  matter  of  law,  and  no  doubt  this 
was  a  correct  holding  in  the  given  case ;  and  yet  it  goes  with- 
out saying  that  a  railroad  man  accustomed  to  getting  on  and 
off  moving  trains  could  easily  and  safely  alight  from  a  train 
running  at  that  rate  of  speed.  If  the  car  is  moving  at  a  high 
rate  of  speed  there  would  be  no  question;  but  if  not,  all  the  cir- 
cumstances would  have  to  be  considered  before  it  could  be  said, 
as  matter  of  law,  to  be  negligent.  It  has  been  held  to  be  "  gross 
negligence  in  a  person  to  jump  from  a  car  which  is  going  at 
the  rate  of  twenty  miles  an  hour,  whether  or  not  he  knows  that 
the  speed  is  so  high."-  On  the  other  hand  it  was  held:  "The 
mere  fact  that  a  street-car  is  moving  slowly  when  a  man  at- 
tempts to  get  on  do3S  not  make  him  guilty  of  negligence  as 
matter  of  law,  but  the  question  is  for  the  jury."* 

"  It  is  not  under  all  circumstances  negligence  as  matter  of 
law,"  say  the  Xew  York  court,  "  for  a  person  to  get  upon  a 
street-car  while  it  is  in  motion.  In  exceptional  cases  it  may 
be  so,  but  ordinarily  it  is  a  question  for  the  jury."  *  In  such 
cases  we  must  apply  the  old  test:  is  the  aot  so  obviously  haz- 
ardous that  a  man  of  ordinary  prudence  would  not  attempt 
it?     If  so,  it  is  negligence. 

§  656.  Same  subject. —  Numerous  cases  might  be  cited  where 
the  courts  have  held  the  acts  of  passengers  and  persons  seek- 
ing damages  in  personal-injury  cases  to  be  as  matter  of  law 
contributory  negligence,  or  so  clearly  negligent  that  no  re- 

1 180  Pa.  St.  436.     "It  is  not  negli-  Eailway  Co.,  149  Mass.  204;  Smith  v. 

gence  per  se  to  attempt  to  leave  a  Railway  Co.,  55  Iowa,  33. 

moving  train;   whether  it  is  negli-  2]\iasterson    v.   Street  Car  Co.,  88 

gence  or  not  depends  upon  all  the  Ga.  436. 

circumstances  of  the  case;  as  upon  ^  jiorrison  v.   Street  Car  Co.,  130 

the  rapidity  of  the  motion,  whether  N.  Y.  166. 

it  is  night  or  day,  whether  the  place  *  Ependorff  v.  Street  Car  Co.,  69 
is  favorable  or  otherwise,  and  the  N.  Y.  195,  25  Am.  Rep.  171.  See  col- 
like."  Little  Rock  v.  Atkins,  46  Ark.  lection  of  cases  in  notes  38  L.  R  A. 
423;  St.  Louis,  etc.  R.  Co.  v.  Cantrel,  786;  Chicago  Ry.  Co.  v.  Mumford,  97 
37  Ark.  526;  Pa.  etc.  Ry.  Co.  v.  Ma-  ID.  560;  Connor  v.  Citizens'  Ry.  Co., 
rion,  123  Ind.  415;  Weber  v.  Railway  150  Ind.  62,  55  Am.  Rep.  177;  Stager 
Co.,  100  Mo.  194;  Rickets  v.  Railway  v.  Ridge,  etc.  Ry.  Co.,  117  Pa.  St.  70; 
Co.,  85  Ala.  600;  Mich.  Cent.  R.  Co.  Moylan  v.  Second  Ave.  R.  Co.,  128 
V.  Coleman,  28  Mich.  440;  Graham  v.  N.  Y.  583. 
Railway  Co.,   39  Fed.   596;  Files  v. 

674 


OH.  III.]  THE   PASSENGER    CAERIEr's    LIABILITY.  [§  G57. 

cov^ery  could  be  had;  as  where  passengers  have  alighted  upon 
the  side  of  the  train  where  there  is  no  platform  instead  of 
upon  the  platform;  where  passengers  in  getting  off  were  in- 
jured by  a  passing  train  or  car;  where  persons  have  fallen 
from  the  top  of  freight  cars  where  they  voluntarily  sought  to 
obtain  a  ride,  and  without  permission;  or  where  the  injury 
was  received  while  riding  upon  the  engine  without  permis- 
sion; or  in  a  place  upon  a  train  where  the  passenger  was  not  al- 
lowed to  be,  by  reason  of  exposing  to  danger  a  part  of  his 
person,  as  by  thrusting  his  head  out  of  the  open  window 
while  the  train  is  running  at  a  high  rate  of  speed,  or  project- 
ing: his  arms  or  limbs  from  the  car,  or  hanging  over  the  side 
of  the  steps  or  platform  of  the  car  of  a  running  train,  or 
crawling  under  the  car  of  a  train  standing  upon  the  track  —  in 
short,  to  do  that  which  ordinarily  prudent  men  without  dissent 
would  consider  extra-hazardous.^ 

§657.  When  excused. —  The  law  sometimes  has  re- 
gard for  the  frailties  of  human  nature  and  often  regards  the 
trying  situation  of  persons  who  may  be  said  to  be  guilty  of 
carelessness  while  endeavoring  to  extricate  themselves  or  those 
depending  upon  them  from  trying  dilemmas.  As  where  a 
mother  accompanied  by  three  children,  on  arriving  at  an  inter- 
mediate station,  proceeded  to  alight  with  them ;  two  of  the 
children  had  left  the  car,  and  while  the  plaintiff  was  still  upon 
the  train  the  car  started,  when  she  sprang  to  the  platform  on 
which  one  of  the  children  had  fallen  prostrate,  and  was  injured. 
It  was  held  that  this  was  not  such  negligence  as  would  prevent 
her  from  recovering  damages  for  injuries  sustained  by  the  pre- 
mature starting  of  the  train.  The  court  say :  "  that  it  is  wrong 
for  a  party  to  attempt  to  leave  cars  while  they  are  in  motion 
is  an  abstract  truth,  that  counsel  complain  of  the  court  for  not 
applying  here.  It  is  one  thing  to  define  a  principle  of  law 
and  a  very  different  matter  to  apply  it  well.     The  rights  and 

1  Walker  v.'.Vicksburg  R.  Co.,  41  La.  Co.,  54  Wis.  GIO;  New  York,  etc.  R. 

Ann.  795,  7  L.  R.  A.  Ill;  Richmond  Co.  v.  Enches,  127  Pa.  St.  316;  Por- 

V.    Second    Ave.    Railroad    Co.,    76  ter  v.   Railway  Co.,   80  Mich.    156; 

Hun  (N.  Y.),  238;  Sharkey  v.  Lake  Watson  v.  Railway  Co.,  81  Ga.  476; 

Roland  R.  Co..  84  Md.  163;  Offerman  Lake  Shore,   etc.  Co.   v.    Banks,  47 

V.    Union    Depot   Co.,    125    Mo.    48;  Mich.    470;    Richmond,   etc.    Co.    v. 

Dascli  V.  North  Chicago,  etc.  R.  Co.,  Scott,  88  Va.  968. 
40  111.  App.  583;  Jewel   v.   Railway 

675 


§  65S,]  CARRIERS    OF    PASSENGERS.  [PART    VI. 

duties  of  the  parties  grow  out  of  the  circumstances  in  which 
they  are  placed."  ^  The  rule  has  been  held  to  be,  "if  a  passen- 
ger is  placed  in  a  position  of  peril  hy  the  negligence  of  the 
carrier,  so  that  he  is  compelled  to  choose  between  the  two  evils 
of  jumping  from  the  moving  car  or  beingjnjured  by  the  other 
peril,  it  will  not  be  negligence  for  him  to  jump."^  As  where 
a  passenger  is  induced  to  jump  off  the  train  by  an  impending 
collision,  he  will  not  be  held  guilty  of  contributory  negligence.* 
And  this  is  held  to  be  the  rule  even  though  no  injury  would 
have  befallen  the  person  if  he  had  not  made  the  attempt  to 
escape  the  threatened  danger.  The  question  in  such  a  case  is 
not  what  a  prudent  person  underordinary  circumstances  would 
have  done,  for  cool  presence  of  mind  could  not  be  expected 
under  such  circumstances,  and  the  law  takes  into  consideration 
the  frailty  of  human  nature  and  considers  the  emergency  in 
which  the  person  is  placed,  the  excitement  and  the  influence  of 
fear  and  danger  which  has  taken  possession  of  him.* 

§  658.  Failure  to  perform  contract  of  carriage  within 
stipulated  or  reasonable  time. —  There  is  an  implied  under- 
taking on  the  part  of  the  carrier  that  he  will  at  least  carry  the 

1  Pennsylvania  Ry.  Co.  v.  Kilgore,  v.  People's  R.  Co.,  107  Mo.  240,  14  L. 

33  Pa.  St.  292.  R.  A.   613.     Held,  "to  jump  from  a 

2T\vomley  v.  Cent.  Park  R  Co.,  69  street-car  which  is  about  to  cross  a 

N.  Y.  158,  25  Am.  Rep.  162.  railroad  track  is  not    contributory 

3  Heath  v.  Glen  Falls  Street  Car  negligence  as  matter  of  law  suffi- 

Co.,  90  Hun  (N.  Y.),  560;  Dimmey  v.  cient  to  defeat  an  action  for  injuries 

Wheeling    R,  Co.,  27  W.  Va.   32,  55  thereby  received,  although  such  ac- 

Am.   Rep.  292;  Washington,  etc.   R,  tion  proved  to  be  wrong,  where  the 

Co.  V.  Hickey,  5  App.  D.  C.  436.    The  view  of  the  track  was  entirely  cut 

fact  that  a  woman  gets  off  a  moving  off  until  the  crossing  was  reached, 

car  upon  its  turning  into  the  barns,  when  an  engine  was  seen  approach- 

upon  refusal  to  stop  to  let  her  off,  ing    only  a    short    distance    away, 

will  not  prevent  her  recovery  for  an  and  the    gatekeeper,  who  appeared 

injury  caused  thereby,  if  she    had  greatly  confused,  was  lowering  the 

been  subjected  to  insult  upon  being  gates  so  as  to  stop  the  street-car,  di- 

carried  into  the  barns  upon  a  previ-  rectlyon  the  track,  while  the  actions 

ous  occasion  and    thought  that  her  of  the  passengers  indicated  an  ai> 

only  way  to  escape  the  same  treat-  prehension     of     imminent      peril." 

ment  was  to  leave  the  car.     Ashton  Washington,  etc.  Co.    v.   Hickey,   5 

v.  Detroit  City  R.  Co.,  78  Mich.  587;  App.  D.  C.  436;  Houston,  etc.  Co.  v. 

and  see  notes  38  L.  R.  A.  786.  Norris,  41  S.  W.  708:  Citizens',  etc.  R. 

*  Adams  v.  Hannibal,  etc.  Co.,  74  Co.  v.  Hoffbauer,  23  Ind.  App.  614,  56 

Mo.  553,    41  Am.  Rep.  333;    Beach,  N.  E.  54,  citing  long  list  of  authori- 

Contributory  Negligence,  44:  Galena,  ties, 
etc.  R.  Co.  V.  Fay,  16  111.  558;  Kieiber 

676 


CH.  III.]  THE    PASSENGER    CARRIEr's    LIABILITY.  [§  658. 

passenger  to  the  point  desired  upon  its  line  within  a  reason- 
able time,  where  the  time  of  departure  and  arrival  is  more  or 
less  definitely  fixed  by  the  published  time-tables  or  schedules 
of  the  carrier  company.  Upo^  these  time-tables  the  passenger 
has  a  right  to  rely,  to  the  extent,  at  least,  that  the  carrier 
will  make  good  the  representations  contained  in  them  if  he 
can  do  so  bj''  reasonable  efforts.  He  does  not  guarantee  to  the 
passenger  that  he  will  start  his  vehicles  on  the  time  mentioned 
in  the  time-tables;  he  may  be  reasonably  detained;  but  he 
must  as  nearly  as  he  can,  and  consistent  with  the  best  interest 
of  the  traveling  public  and  his  own  business,  fulfill  the  repre- 
sentations he  so  makes.  And  so  where  a  passenger  who  had 
engaged  transportation  from  ISTew  York  to  San  Francisco  was 
unreasonably  detained  at  Panama  by  the  default  of  the  trans- 
portation company,  and  was  thereby  specially  damaged,  it  was 
held  that  he  might  maintain  damages  from  the  carrier.^  These 
actions  are  sustained  upon  the  theory  that  the  carrier  is  guilty 
of  negligence,  and  it  is  the  damage  arising  from  the  unreason- 
able delay  of  the  carrier  that  may  be  recovered;  and  so  it  must 
necessarily  follow  that  if  the  carrier  company  has  done  all 
that  reasonable  care  and  skill  could  do  to  transport  the  pas- 
senger punctually,  and  the  delay  cannot  be  attributed  to  any 
negligence  upon  his  part,  the  carrier  would  not  be  liable.  It 
has  been  said  that  "  the  publication  of  a  time-table  in  common 
form  imposes  upon  a  railroad  company  the  obligation  to  use 
due  care  and  skill  to  have  the  trains  arrive  and  depart  at  the 
precise  moment  indicated  in  the  time-table;  but  it  does  not 
import  an  absolute  and  unconditional  engagement  for  such  ar- 
rival and  departure,  and  does  not  make  the  company  liable 
for  want  of  punctuality  which  is  not  attributable  to  their  neg- 
ligence."^ 

1  Buskirk  v.  Roberts,  31  N.  Y.  66L  596,  In  Savannah,  etc.  R.  Co.  v.  Bo- 
In  Sears  v.  Eastern  Ry.  Co.,  14  Allen,  naud,  58  Ga.  180,  it  was  held  that  "a 
433,  it  was  held  "that  railroad  cor-  railroad  company  which  fails  to  run 
porations.  by  advertising  the  hours  a  train  according  to  its  published 
when  trains  will  start,  agree  with  schedule,  unless  prevented  by  some 
holders  of  tickets  that  trains  shall  valid  reason,  is  liable  to  a  person 
start  at  the  hour  named,  but  with  sustaining  injury  from  such  failure 
an  implied  reservation  of  power  to  for  the  damages  actually  sustained 
change  the  hours  upon  giving  rea-  by  him  as  the  direct  and  necessary 
sonable  notice."  result  thereof." 

2  Gordon  v.  Manchester,  52  N.  H. 

677 


CHAPTER  lY. 


LIMITATION  OF  LIABILITY. 


659.  Three  classes  of  holdings  by 

the  courts. 

660.  The  first  class:  Carrier  cannot 

limit  liability  where  dam- 
age results  from  his  own  or 
servant's  negligence. 

661.  The  second  class:  Carrier  can 

limit  liability  even  though 
damage  the  result  of  his 
own  or  servant's  negligence. 


663.  The  third  class:  May  limit  for 
negligence  but  not  for  gross 
negligence. 

663.  The  weight  of  authority. 

664.  Free   passes  —  Limitation    of 

liability  for  injuries  to  per- 
sons riding  upon. 

665.  Limitations   growing  out  of 

that  which  is  incident  to  the 
carriage. 


§  659.  Three  classes  of  holdings  by  the  courts. —  That  the 
carrier  of  passengers  may  to  some  extent  limit  his  liability  for 
injuries  or  damages  which  are  not  the  result  of  his  own  negli- 
gence or  the  negligence  of  his  servants  seems  to  be  conceded ; 
but  where  the  injury  or  damage  is  the  result  of  the  carrier's 
own  negligence  or  that  of  his  servants,  there  is  irreconcilable 
conflict  in  the  rulings  of  the  courts.  The  rulings  of  the  sev- 
eral courts  upon  this  subject  may  be  divided  into  three  distinct 
classes,  or  groups,  all  dividing  upon  the  question  of  negligence. 
The  first  class  holds  that  the  carrier  cannot  limit  his  liability 
when  the  damage  or  injury  results  from  his  own  or  his  serv- 
ant's negligence.  The  second  class  is  directly  opposed  to  the 
first,  holding  that  by  special  contract  the  carrier  can  limit  his 
liability  even  to  the  extent  of  excusing  himself  for  damage  or 
injury  resulting  from  his  own  negligence  or  that  of  his  serv- 
ants. The  third  class  holds  that,  while  the  carrier  may  limit 
his  liability  for  negligence,  he  cannot  limit  such  liability  if  the 
negligence  is  gross;  in  other  words,  that  he  will  be  required 
to  exercise  at  least  ordinary  diligence. 

§  660.  The  first  class  :  Carrier  cannot  limit  liability  where 
damage  results  from  his  own  or  servant's  negligence. —  The 
courts  holding  to  this  doctrine  base  their  opinion  upon  the  theory 
that  the  common  carrier  is  in  the  exercise  of  his  duties  and 
privileges  a  quasi-pnhUc  officer;  that  the  carrier  and  passenger 

678 


OH.  IV.]  LIMITATION    OF    LIABILITY.  [§  660. 

who  seek  to  enter  into  a  contract  limiting  the  liability  are  not 
the  only  parties  interested,  but  that  the  public  generally  are 
affected ;  and  that  to  be  exonerated  from  the  exercise  of  that 
high  degree  of  diligence  that^  attaches  to  the  common  carrier 
of  passengers  by  a  contract  between  the  carrier  and  the  pas- 
senger would  be  to  disregard  the  public  interest  and  the  public 
demands,  and  would  therefore  be  in  violation  of  public  policy, 
and  for  that  reason  such  contracts  would  be  void.  As  was  said 
in  a  recent  case  respecting  the  duty  of  a  common  carrier,  "the 
duty  to  use  extraordinary  diligence  to  protect  the  lives  of  his 
passengers  cannot  be  waived."  ^  And  so  where  a  common 
carrier  sought  to  relieve  himself  from  liability  for  injury  re- 
ceived by  a  drover  riding  upon  a  return  pass  without  paying 
fare,  the  contract  stipulating  that  in  consideration  of  such  pas- 
sage the  drover  assumed  all  risk,  the  court  said:  "It  is  very 
well  established  in  this  state  that  a  contract  for  such  an  ex- 
emption from  liability  by  a  common  carrier  is  void  as  against 
public  policy.  The  defendant  could  not  by  any  agreement 
however  plain  and  explicit  wholly  relieve  itself  from  liability 
for  injuries  caused  by  its  negligence  or  the  negligence  of  its 
agents  or  employees."  ^  A  leading  case  upon  this  subject,  and 
one  which  has  been  often  followed  in  the  United  States  su- 
preme court  and  in  the  state  courts,  is  that  of  Bailroad  Co.  v. 
Locliwood^  where  the  supreme  court  of  the  United  States  dis- 
cuss fully  this  question.  In  Pennsylvania  it  seems  to  be  set- 
tled by  a  long  course  of  decisions  that  a  common  carrier  of 
passengers  cannot  limit  his  liability  so  as  to  exonerate  himself 
from  injuries  occurring  from  his  own  negligence  or  that  of  his 
servants.  In  Farnhani  v.  RaUway  Co}  the  court  say:  "The 
doctrine  is  firmly  settled  that  a  common  carrier  cannot  limit 
his  liability  so  as  to  cover  his  own  or  his  servant's  negligence." 
And  the  Indiana  court  say:  "The  law  will  not  allow  the  car- 
rier thus  to  abandon  his  obligation  to  the  public,  and  hence  all 
stipulations  which  amount  to  a  denial  or  repudiation  of  duties 
which  are  of  the  very  essence  of  his  employment  may  be  re- 

1  Cent.  Ga.  Ry.  Co.  v.  Lippman,  110     Inman  Co.  v.  Railway  Co.,  129  U.  S. 
Ga.  6(J5,  36  S.  E.  202.  128;  Liverpool,  etc.  Steam  Co.  v.  In- 

^  Davis  V.  Chicago,  etc.  Ry.  Co.,  93    surance  Co.,  129  U.  S.  31)7. 
Wis.  470,  33  L.  R.  A.  654.  4  55  Pa.  St.  63. 

317  Wall.  (U.  S.)  357,  21  L.  ed.  627: 

679 


§  661.]  CARRIERS    OF    PASSENGERS.  [PART    VI. 

garded  as  unreasonable,  contrary  to  public  policy,  and  there- 
fore void."  ^ 

§  661.  The  second  class:  Carrier  can  limit  liability  even 
though  damage  the  result  of  his  own  or  his  servant's  negli- 
gence.—  The  second  class  of  decisions  is  directly  opposed  to 
the  first,  holding  that  the  carrier  may,  by  special  contract, 
limit  his  liability  where  the  damage  complained  of  was  the 
result  of  his  own  negligence  or  that  of  his  servants,  contend- 
ing that  this  rule  in  no  way  does  violence  to  public  polic}^ 
for  the  reason  that  the  contract  is  one  which  interests  no  one 
except  the  passenger  and  the  carrier;  that  it  is  a  subject-matter 
in  which  no  other  interests  are  involved  except  the  interests 
that  are  controlled  and  possessed  entirely  by  the  contractmg 
parties.  This  doctrine  is  fully  discussed  in  the  case  of  Trenton^ 
etc.  R.  Co.  V.  Guarantors,  etc.  Co?  This  case  was  brought  upon 
a  written  contract  whereby  the  defendants  indemnified  the 
railroad  company  against  liability  for  injury  to  or  death  of 
persons  by  casualties  occurring  in,  upon  or  about  their  railroad, 
etc.  The  question  as  to  the  validity  of  the  contract  was  be- 
fore the  court.  The  court  say:  "The  proposition  which  one 
would  assert  who  contested  the  validity  of  such  a  contract 
would  obviously  be  this,  namely,  that  a  contract  whereby  a 
common  -carrier  of  passengers  is  to  be  indemnified  against 
damages  Avhich  he  was  required  to  pay  for  personal  injuries 
occasioned  by  his  negligence  or  by  the  negligence  of  his  agent 
is  contrary  to  public  policy,  and  therefore  unenforceable.  It 
is  admittedly  difficult,  if  not  impossible,  to  formulate  a  satis- 
factory statement  of  what  is  meant  by  the  words  '  public  pol- 
icy.' .  .  '.  The  only  reason  which  I  find  possible  to  conceive 
to  be  capable  of  being  urged  in  support  of  the  proposition  that 

1  Louisville,  etc.  Co.  v.  Faylor,  126  way  Co.,  79  Fed.  561  (C.  C.  S.  Div. 

Ind.  126:  Ind.  Cent.  Ry.  Co.  v.  Mundy,  Ohio);  Louisville,  etc.  Co.  v.  Keifer, 

21  lud.  48;  Ohio,  etc.  Ry.  Co.  v.  Nick-  146  Ind.  21;  Railway  Co.  v.McLaugh- 

less,  71  Ind.  271;  Gulf,  etc.  Co.  v.  Mc-  lin,  73  Fed.  519;   Tibby  v.   Railway 

Gown,  65  Tex.  640;  Mo.  Pac.  Ry.  Co.  Co.,  82  Mo.  292:  Jones  v.  Railway  Co., 

V.  Iby,  71  Tex.   409,  1  L.  R  A.  500;  125  Mo.  666,  26  L.  R.  A.  718;  Cleve- 

Carroll  v.   Railway  Co.,  88  Mo.  289;  land,  etc.  R  Co.  v.  Curran.  19  Ohio 

Jacobus  V.  Railway  Co.,  20  Minn.  125,  St.  1,  2  Am.  Rep.  362;  111.  Cent.  Ry. 

18  Am.  Rep.  360;  Biyan  v.  Railway  Co.  v.  Crudup,  63  Miss.  291. 
Co.,  32  Mo.  A  pp.  228;  Voight  v.  Rail-        -'go  N.  J.  Law,  246,  44  L.  R.  A.  213. 

680 


•CH.  lY.]  '       LIMITATION    OF    LIABILITY.  [§  601. 

the  contract  before  us  in  this  case  is  contrary  to  public  policy 
is  that  the  indemnity  thereby  provided  for  a  common  carrier 
•of  passengers  may  tend  to  render  him  less  careful  in.  the  per- 
formance of  his  duty  to  his  passengers  than  he  otherwise  would 
be.  It  is  obvious  that  such  is  not  the  purpose  of  the  contract 
for  indemnity.  The  insurer  does  not  contemplate  the  relaxa- 
tion of  the  carrier's  vigilance,  which  would  tend  to  throw 
additional  liability  upon  hira.  The  insurer  is  held  to  the 
performance  of  his  duty  of  vigilance  both  by  his  liability,  not- 
withstanding the  indemnity,  and  by  the  fact  that  the  vigilant 
carrier  would  obtain  better  terms  in  making  the  contracts  of 
insurance.  It  is  further  obvious  that  if  a  contract  indemnify- 
ing the  common  carrier  of  passengers  against  liability  arising 
from  his  neo^ligence  tends  to  a  relaxation  of  vig-ilance  inimical 
to  the  public  interest,  so  a  contract  indemnifying  a  common 
carrier  of  goods  against  the  consequences  of  his  negligence 
must  have  the  satne  effect  and  be  obnoxious  to  the  rule  avoid- 
ing contracts  contrary  to  public  policy.  Yet  it  now  seems  well 
settled  that  a  common  carrier  of  goods  may  enforce  contracts 
of  insurance  on  goods  carried  against  all  losses,  including  those 
■occasioned  by  his  negligence  or  the  negligence  of  his  serv- 
ants. .  .  .  The  result  is  that  the  reserved  question  must  be 
answered  in  favor  of  the  validity  of  the  contract  upon  which 
this  action  is  founded." 

The  leading  case  in  this  class  is  one  from  the  New  York 
'Court  —  Bissellv.  liaihoay  Co}  In  this  case  the  court  say:  "If 
he  (the  passenger)  may  by  contract  assume  certain  risks  in  con- 
sideration of  riding  free,  why  may  he  not  make  a  contract  to 
assume  the  same  risk  in  consideration  of  being  carried  at  half 
price,  etc.?  When  we  once  hold  that  assuming  these  risks  is 
within  his  power  as  matter  of  contract,  the  court  has  no  power 
to  interfere  with  his  contract  on  the  score  of  quantum  of  con- 
sideration, or  on  any  ground  but  illegalit}'^  of  consideration." 
And  in  this  case  the  court  further  held  "  that  a  common  car- 
Tier,  in  consideration  of  an  abatement,  in  whole  or  in  part,  of 
his  legal  fare  ma}^  lawfully  contract  with  a  passenger  that  the 
latter  will  take  upon  himself  the  risk  of  damage  from  the  neg- 
ligence of  agents  or  servants  for  which  the  carrier  would  other- 
wise be  liable;  that  public  policy  is  satisfied  by  holding  a  rail- 

1 25  N.  Y.  442. 
681 


§  CGI.]  CARKIEKS    OF    PASSENGERS.  [PAET    VI, 

road  corporation  bound  to  take  the  risk  when  the  passenger 
chooses  to  pay  the  fare  established  by  the  legislature.  If  he 
voluntarily  and  fof  any  valuable  consideration  waives  the  right 
to  indemnity,  the  contract  is  binding."  And  where  the  plaint- 
iff, while  traveling  on  a  regular  train  on  defendant's  road,  on 
a  free  pass,  was  injured  by  a  collision  caused  by  defendant's 
negligence,  and,  where  upon  the  pass  there  was  an  indorse- 
ment to  the  effect  that,  in  consideration  of  receiving  it,  the 
holder  assumed  all  risks  of  accident  and  agreed  that  the  com- 
pany should  '  not  be  held  liable  under  any  circumstances, 
whether  by  negligence  of  their  agents  or  otherwise,'  for  injury 
to  his  person  or  property,  and  that  in  the  use  of  the  pass  he 
would  '  not  consider  the  company  as  a  common  carrier  or  liable 
as  such,'  and  w^iere  in  an  action  to  recover  damages  for  the 
injury  it  appeared  that  the  plaintiff  had  purchased  a  ticket  en- 
titling him  to  a  seat  in  the  drawing-room  car  upon  the  'train, 
from  the  drawing-room  conductor,  and  it  was  stated  in  the 
check  given  for  the  seat  that  it,  '  with  passage  ticket  or  fare,' 
Avould  be  taken  up  by  the  train  conductor,  it  was  held  that 
'  this  did  not  make  plaintiff  a  passenger  for  hire,  and  did  not 
have  the  effect  to  annul  or  vary,  for  the  trip,  the  contract  made 
by  the  pass  and  its  indorsement;  that  assuming  such  a  purchase 
of  a  seat  ticket  has  the  same  force  and  effect  as  if  purchased 
from  the  train  conductor.'  .  .  .  And  so  long  as  the  pass 
was  used  to  secure  transportation  did  not  in  any  way  affect  the 
validity  of  the  agreement  expressed  therein."  ^  In  Massachu- 
setts it  was  held  that  "  an  agreement  by  one  who  accepts  a  rail- 
road pass  purely  as  a  gratuit3%  that  he  will  assume  all  risks  of 
accident  of  every  name  and  nature,  is  not  against  public  policy, 
and  will  prevent  a  recovery  by  him  for  injuries  occasioned  b}^ 
the  negligence  of  the  railroad  company's  servants."^  This  ap- 
pears to  be  the  rule  both  in  England  and  in  the  Canadian 
courts.^  The  supreme  court  of  Maine  have  also  held  to  this 
doctrine,  and  in  Rogers  v.  Steamboat  Co}  it  was  said  that  "  a 

1  Ulrich  V.  Railway  Co.,  108  N.  Y.  Co.,  L.  R.  10  Q.  B.  Div.  437;  Gallin  v. 

80.  Railway  Co..  L.  R.  10  Q.  B.  Div.  213: 

2Quimby  v.  Railway  Co.,  150  Mass.  McCawley  v.  Railway  Co.,  L.  R.  10 

365,  5  L.  R.  A.  846.  Q.  B.  Div.  57. 

3  Southerland    v.    Railway  Co.,    7        •*  86  Me.  261,  25  L.  R  A.  491 :  Gris- 

U.   C.  C.    R    409;    Hall  v.  Railway  wold  v.   Railway  Co.,  53  Conn.  371; 

682 


CH.   IV.]  LIMITATION    OF    LIABILITY.  [§§    Q62-664:. 

condition  in  a  free  pass  that  the  passenger  will  assume  all  risks 
of  personal  injury  is  not  against  public  policy." 

§  662.  The  third  class:  May  limit  for  negligence  hut  not 
for  gross  negligence. —  The  third  class  of  authorities  holds  that 
the  common  carrier  of  passengers  may  limit  his  liability  for  in- 
juries resulting  from  the  negligence  of  himself  or  servants  if 
such  negligence  is  not  gross  negligence,  bdB  that  for  gross  neg- 
ligence he  must  be  held  liable.^ 

§  663.  The  weight  of  authority. —  It  is  difficult  to  determine 
where  the  weight  of  authority  rests,  but  it  seems  to  be  conceded 
by  most  of  the  authorities  upon  this  subject  that  the  weight  of 
authority  in  this  country  is  that  a  common  carrier  of  passen- 
gers cannot,  b}''  special  contract  or  otherwise,  limit  his  liability 
for  injury  or  damage  resulting  from  the  negligence  of  himself 
or  his  servants;  that  such  a  contract  would  be  void.  Both  rea- 
son and  humanity  would  dictate  that  this  should  be  the  law. 
Nothing  is  held  so  important  and  so  sacred  in  the  law  as  the 
protection  of  life  and  limb.  One  may  barter  away  his  prop- 
erty, but  the  law  would  not  permit  him  to  put  his  own  life  in 
the  scale;  he  may  possess  it  and  protect  it,  but  to  destroy  it  is 
a  crime.  It  is  therefore  difficult  to  see  upon  what  principle  one 
ensao^ed  in  so  dangerous  and  hazardous  a  business  as  that  of  a 
common  carrier  of  passengers  can  be  relieved  by  contract  from 
the  results  of  his  own  or  his  servant's  negligence  that  often  in- 
volves the  loss  of  life,  even  though  such  contract  is  based  upon 
a  valuable  consideration,  and  still  more  difficult  when  the  in- 
juries are  the  direct  result  of  gross  negligence  on  the  part  of 
himself  or  his  servants;  and  so  it  would  seem  that  reason  and 
justice  and  public  policy  would  suggest  that  the  carrier  can- 
not so  limit  his  liability  by  contract. 

§664.  Free  passes  —  Limitation  of  liability  for  injuries 
to  persons  riding  upon. —  There  has  been  a  great  deal  of  dis- 
cussion and  a  variety  of  holdings  in  the  courts  as  to  the  valid- 
ity of  contracts  between  the  carrier  company  and  persons  riding 

Wells  V.  Railway  Co.,  24  N.  Y.  181;        ^  Railway  Co.  v.  Hawks,  86  111.  App. 

Muldoon  V.  Seattle,  etc.  Co.,  7  Wasli.  327;  111.  Cent.  R.  Co.  v.  Beebe,  69  111. 

529;  Kirney  v.  Railway  Co.,  3-t  N.  J.  App.  303:  111.  Cent.  R.  Co.  v.  Read.  37 

L.  513;  Hosmef  v.  Railway  Co.,  156  111.484;  Toledo,   etc.  Co.  v.  Railway 

Mass.  506;  Bates  v.  Railway  Co.,  147  Co.,  85  111.  80,  28  Am.  Rep.  615;  Annis 

Mass.  255;  Doyle  v.  Railroad  Ca.  162  v.  Railroad  Co.,  67  Wis.  46. 
Mass.  66;  s.  c,  166  Mass.  492. 

686 


§  QQi.] 


CARRIERS    OF    PASSENGERS. 


[part  XI. 


upon  free  passes  over  their  road.  It  is  somewhat  diflBeult  to 
determine  just  where  the  weight  of  authority  rests,  as  some  of 
the  strongest  courts  in  the  Union  differ  in  their  opinion  upon  this 
subject;  and  in  those  courts  where  it  has  been  held  that  such 
contracts  are  valid  and  that  the  passenger  cannot  recover,  even 
though  the  injury  is  the  result  of  the  negligence  of  the  carrier 
or  his  servants,  some  modification  has  been  made  where  the 
pass  was  issued  to  the  passenger  for  a  valuable  consideration, 
either  direct  or  indirect ;  as,  for  example,  a  pass  given  to  a  drover 
in  order  that  he  may  accompany  the  stock  shipped  by  him  over 
the  road,  or  where  the  pass  is  given  to  one  who  is  engaged  to 
perform  a  service  for  the  company,  or  where  the  journey  of  the 
passenger  is  directly  or  indirectly  for  the  benefit  of  the  com- 
pany;^ but  it  would  seem  that  the  weight  of  authority  is  that 


1  In  Doyle  v.  Railway  Co.,  166  Mass. 
492,  the  plaintiff's  intestate  was  em- 
ployed by  the  railroail  company  as  a 
clerk  in  its  freight  department;  on 
the  occasion  of  his  injury  he  was 
traveling  upon  a  pass  going  from  the 
city  of  Boston,  where  he  was  em- 
ployed, to  his  home  in  Waltham,  as 
he  had  been  in  the  habit  of  doing 
Saturday  afternoons  at  the  close  of 
his  week's  work.  On  the  back  of  the 
ticket,  or  pass,  upon  which  the  intes- 
tate was  riding  were  the  following 
conditions:  "The  person  accepting 
this  free  ticket,  thereby,  and  in  con- 
sideration thereof,  assumes  all  risk 
of  accidents,  and  expressh"  agrees 
that  the  company  is  not  a  common 
carrier  in  respect  to  him.  and  shall 
not  be  liable  under  any  circum- 
stances, whether  of  negligence  of  its 
agents  or  otherwise,  for  injury  to  the 
person,  or  for  loss  or  injury  to  the 
property  of  the  passenger  using  this 
ticket."  The  case  was  twice  before 
the  court  and  was  first  considered  in 
162  Mass.  66.  The  court  in  its  opin- 
ion say:  "We  assume  that  if  the 
ticket  had  been  a  gratuity,  the  con- 
tract on  the  back  of  it  would  have 
precluded  a  recovery,  and  tiiat  it 
would  have  made  no  difference  that 


the  negligence  was  gross.  How^  far 
common  carriers  may  go  in  contract- 
ing to  be  relieved  from  the  conse- 
quences of  their  own  negligence  and 
that  of  their  servants  is  a  matter  on 
which  different  courts  have  taken 
different  views,  and  on  which,  in 
some  instances,  courts  within  the 
same  jurisdiction  have  expressed 
themselves  differently  at  different 
times.  It  is  clear  that  they  have  not 
an  unlimited  power  of  contract  in 
this  respect.  A  private  individual 
may  refuse  to  transport  a  person 
from  one  place  to  another  unless  the 
latter  will  agree  to  assume  all  risk  of 
injury.  But  railroad  coriwrations 
would  have  no  right  to  insist  as  a 
condition  of  carrying  a  passenger 
that  he  should  make  such  a  contract. 
This  arises  out  of  the  nature  of  the 
service  which  they  undertake.  .  .  . 
Although  the  liability  of  a  carrier  of 
merchandise  is  that  of  an  insurer, 
and  the  liability  of  a  carrier  of  pas- 
sengers is  measured  by  the  highest 
degree  of  care  which  human  fore- 
sight will  reasonably  admit  of.  we 
see  no  valid  reason  for  holding  that 
in  the  former  case  the  carrier  cannot 
be  exempted  from  his  own  negli- 
gence, and  that  in  the  latter  he  may." 


684 


CH.  IV.] 


LIMITATION    OF    LIABILITY. 


[§  664. 


the  railroad  company  may  limit  in  a  degree  their  liability  where 
a  gratuitous  pass  is  given  to  the  passenger  upon  which  there  is 
a  limitation  written  and  signed  by  the  passenger  that  he  as- 
sumes all  risks  of  accident,  and  that  the  carrier  company  shall 
not  be  liable  under  any  circumstances,  whether  of  negligence 
by  their  agents  or  otherwise,  but  that  there  can  be  no  limita- 
tions even  in  such  cases  to  the  extent  of  excusing  the  carrier 
for  gross  negligence  of  himself  or  his  servants.  Some  of  the 
courts,  including  some  of  the  most  learned,  however,  have  held 
that  these  limitations  are  valid  and  are  to  be  held  as  binding 
and  effective  to  the  full  measure  of  their  lano:uao^e:  but  not- 
withstanding  this  it  is  difficult  to  see  how  such  contracts  are 
not  in  violation  of  public  policy.^ 


Quimby  v.  Railway  Co.,  150  Mass?. 
365;  Rogers  v.  Railway  Co.,  86  Me. 
261;  Griswold  v.  Railway  Co.,  58 
Conn.  371.  In  Railway  Co.  v.  Stevens, 
95  U.  S.  655,  the  plaintiff,  who  was  in- 
jured, was  performing  some  service 
for  the  railroad  company  and  riding 
upon  a  free  pass  with  the  usual  con- 
ditions exempting  the  company  upon 
it;  the  court  held  that  the  pass  was 
given  for  a  consideration,  and  that 
therefore  he  was  entitled  to  the  priv- 
ileges of  a  passenger,  and  that  the 
acceptance  of  a  pass  with  the  condi- 
tions exempting  the  company  from 
liability  would  not  estop  him  from 
recovering  damages  for  the  injury." 
lA  contract  exempting  a  carrier 
company  from  liability  for  injuries 
to  passengers,  except  in  cases  whei'e 
the  injury  is  the  result  of  gross  neg- 
ligence of  its  employees,  held  to  be 
void.  Railway  Co.  v,  Beebe,  69  111. 
App,  363;  Railway  Co.  v.  Keefer,  146 
Ind.  21;  Railway  Co.  v.  Read,  37  111. 
484;  approved  in  Railway  Co.  v. 
Beggs,  80  111.  80,  28  Am.  Rep.  613. 
And  in  Railway  Co.  v.  Hawks,  36  III. 
App.  327,  it  was  held  that  a  stipula- 
tion in  a  free  pass  exempting  a  rail- 
road company  from  liability  for  in- 
juries resulting  from  negligence,  ex- 


cept where  the  negligence  is  gross,  of 
itself  or  servants,  was  held  valid. 
Railroad  company  held  to  gross  neg- 
ligence notwithstanding  contract  ex- 
cusing from  negligence.  Indiana 
Cent.  Ry.  Co.  v.  Mundy,  21  Ind.  48,83 
Am.  Dec.  339.  Company  held  for  its 
negligence  notwithstanding  con- 
ti'act.  See  Rose  v.  Railway  Co.,  39 
Iowa,  246;  Brush  v.  Railway  Co.,  43 
Iowa,  554.  Conditions  exempting 
railroad  company  held  void.  Jacobus 
V.  Railway  Co.,  20  Minn.  125,  18  Am. 
Rep.  360;  Bryan  v.  Railway  Co.,  32 
Mo.  App.  228;  Railway  Co.  v.  Hender- 
son, 51  Pa.  St.  315;  Railway  Co.  v. 
Bausch,  7  Atl.  731;  Annis  v.  Railway 
Co.,  67  Wis.  46.  30  N.  W.  282.  Courts 
holding  the  conditions  or  contract 
releasing  carriers  from  liability  in- 
dorsed upon  the  pass  valid.  Rogers 
V.  Kennebec.  86  Me.  261,  29  Atl.  1069, 
25  L.  R.  A.  491,  holding  that  "  a  con- 
dition in  a  free  pass  exempting  the 
carrier  from  all  liability  lor  personal 
injury  is  valid."  Where  the  free  pass 
was  a  gratuity,  held  valid.  Quimby 
V.  Railway  Co.,  150  Mass.  365,  23  N.  E. 
205,  5  L.  R.  A.  846;  Kinney  v.  Rail- 
way Co.,  32  N.  J.  L.  407,  90  Am.  Dec. 
675;  Wells  v.  Railway  Co.,  24  N.  Y. 
181;  Perkins  v.  Railway  Co.,  24  N.  Y. 


685 


§  665.]  CAKEIEES    OF    PASSENGERS.  [PART    TI. 

§  665.  Limitations  growing  out  of  that  which  is  incident 
to  the  carriage. —  In  the  carrying  on  of  every  business  there 
are  certain  limitations,  or  qualifications,  of  the  liability  of  the 
owner,  or  proprietor,  that  of  necessity  grow  out  of  that  which 
is  incident  to  the  doing  of  the  very  thing  that  results  in  dam- 
age; as,  for  example,  the  manufacturer  who  employs  men  to 
run  dangerous  and  intricate  machiner}^;  the  employee  in  ac- 
cepting the  employment  understands  that  the  machinery  is 
dani^erous  and  that  he  must  bring:  to  the  usins:  of  it  care  and 
skill,  and  if  he  is  injured  in  its  ordinary  use  the  courts  have 
held  that  the  risk  is  one  that  he  assumes  when  he  accepts  the 
employment.  This  same  principle  may  be  applied  to  the  sub- 
ject we  are  here  considering;  the  common  carrier  of  passen- 
gers is  held  to  the  very  highest  degree  of  diligence  in  operat- 
ing his  vehicles,  trains,  or  boats;  but  there  are  certain  risks 
that  the  passenger  must  be  held  to  take  upon  himself.  For  ex- 
ample, the  postal  clerk  takes  the  risks  that  are  usually  ordi 
nary  and  incident  to  the  riding  and  working  in  the  postal  car, 
and  should  he  be  thrown  down  or  jolted  against  the  sides  of 
the  car  while  the  train  is  running  around  curves  or  coming, 
necessarily,  to  a  sudden  stop,  the  carrier  would  not  be  liable. 
And  so  if  one  should  board  a  freight  train  as  a  passenger,  and 
in  the  usual  running  of  the  train  should,  because  of  the  slacking 
of  the  speed,  be  throw^n  from  his  seat  and  injured,  or  by  the 
usual  and  sudden  jolting  should  suffer  damages,  he  w^ould  be 
held  to  have  assumed  all  the  ordinary  risks  that  are  incident 
to  such  a  trip  and  could  not  recover  from  the  carrier. 

This  question  was  discussed  in  the  case  of  Olds  v.  Railioay 
Co.^  where  a  passenger  was  injured  while  riding  upon  defend- 
ant's freight  train.  The  court  say:  "From  the  composition  of 
such  a  train,  and  the  appliances  necessarily  used  in  its  efficient 

196;   Bissell  v.  Eailway  Co.,  25  N.  Y.        1 172  Mass.  73,  51  N.  E.  451;  Le  Bar- 

442;     Muldoon    v.    Railway    Co.,    7  ron  v.  Ferry  Co.,  11  Allen,  312;  Hey- 

Wash.  528,  35  Pac.  422,  22  L.  R,  A.  ward  v.  Railway  Co.,  169  Mass.  466, 

794.     For  a  general  discussion  as  to  48  N.  E.  773;  Dodge  v.  S.  S.  Co.,  148 

limitation  of  liability  by  carriers  for  Mass.  207,  19  N.  E.  373;  Railway  Co. 

personal  injuries  to  passengers,  see  v.  Axley,  47  111.  App,   307;  Dunn  v. 

note  and  collection  of  authorities  fol-  Railway  Co.,    58  Me.   187;  Lusby  v. 

lowing  Clark  v.  Geer,  32  U.  S.  C.  C.  Railway  Co.,  41   Fed.   181;  Railway 

App.  301.  Co.  V.  Dickerson,  59  Ind.  317. 

686 


€H.  IV.]  LIMITATION    OF    LIABILITY.  [§  665. 

operation,  there  cannot,  in  the  nature  of  things,  be  the  same 
immunity  from  peril  in  traveling  by  freight  trains  as  there  is 
by  passenger  trains ;  but  the  same  degree  of  care  can  be  exercised 
in  the  operation  of  each.  The  result  in  respect  of  the  safety 
of  the  passenger  may  be  wholly  different  because  of  the  inher- 
ent hazards  incident  to  the  operation  of  one  train,  and  not  to 
the  other;  and  it  is  these  hazards  the  passenger  assumes  in 
taking  a  freight  train,  and  not  hazards  or  peril  arising  from  the 
negligence  or  want  of  proper  care  of  those  in  charge  of  it." 

687 


CHAPTEE  Y. 


BAGGAGE  OR  THE  PASSENGER'S  EFFECTS. 


666. 

Kinds  of  baggage. 

§  679 

667. 

Ordinary    baggage  —  Defini- 

tion. 

680. 

668. 

(1)  The  station  in  life  of  the 

passenger. 

681. 

669. 

(2)  The  business  or  occupation 
of  the  traveler. 

670. 

(3)  The  object  of  the  journey. 

682. 

671. 

(4)  The  effects   must  be  per- 

683. 

SQpal  to  the  traveler. 

684. 

672. 

(5)  Must     be     reasonable     in 
amount  for  the  journey  and 

685. 

its  objects. 

686. 

673. 

What  is  not  baggage. 

674. 

Sample  trunks  or   com- 
mercial effects. 

i75. 

Payment  of  excess  bag- 
gage. 

687. 

676. 

Reasonable  regulation. 

688. 

677. 

Good  faith. 

689. 

678. 

The  owner    of  the    baggage 
should  be  a  passenger. 

Should  the  owner  accompany 
the  baggage? 

Baggage  of  one  riding  upon  a 
free  pass. 

Liability  of  the  carrier  for 
baggage  under  his  exclusive 
control. 

Hand  baggage. 

Sleeping-car  companies. 

Liability  for  theft  of  servants. 

A  high  degree  of  ordinary 
diligence  required. 

Mixed  custody  of  passenger 
and  carrier  —  Is  the  liabil- 
ity of  steamship  company 
and  innkeeper  the  same? 

The  baggage  of  a  steerage 
passenger. 

Termination  of  liability. 

Failure  of  carrier  to  deliver 


§666.  Kinds  of  baggage. —  The  baggage  or  property  and 
effects  of  the  passenger  may  be  divided  into  three  classes. 
First,  the  ordinary  baggage  that  is  consigned  to  the  car- 
rier's control;  second,  commercial  baggage,  or  effects  which 
are  also  consigned  to  the  carrier's  control;  and  third,  hand 
baggage.  The  law  relating  to  this  subject  has  been  for  the 
last  twenty-five  years  or  more  in  a  state  of  evolution,  and 
while  the  decisions  and  authorities  have  been  somewhat  con- 
flicting, it  may  be  said  that  the  law  is  now  fairly  well  settled. 
Within  comparatively  the  last  few  years  a  new  class  of  bag- 
gage, or  property  carried  by  the  carrier  of  passengers,  has 
come  into  existence  and  demands  the  attention  and  considera- 
tion of  the  courts.  It  has  grown  up  by  reason  of  a  vast  whole- 
sale business  that  has  been  transacted  through  the  agency  of 
commercial  travelers  who  carry  with  them  from  place  to  place 

688 


CU.  v.]  BAGGAGE    OR   THE    PASSENGEr's    EFFECTS,       [§§  QQ7,  668. 

large  sample  trunks  filled  with  valuable  goods  and  commod- 
ities for  the  benefit  of  the  trade.  The  early  common-law  rules 
governing  the  law  of  baggage  gave  no  place  to  this,  and  it  has 
been  the  duty  of  the  courts  l^o  settle  and  establish,  upon  the 
principles  of  law  governing  Ccirriers,  their  duties  and  liabilities, 
with  reference  to  this  business.  Technically  this  is  not  bag- 
gage, but  rather  commercial  effects  used  not  as  baggage  by  th& 
passenger  but  for  the  carrying  on  of  his  business. 

§667.  Ordinary  baggage  —  Definition.  —  It  is  difficult  to 
formulate  a  definition  that  will  embrace  all  the  essentials  of 
the  baggage  of  a  passenger;  it  depends  upon  so  many  con- 
ditions and  circumstances,  his  station  in  life,  the  objects  of  the 
journey,  his  business  or  vocation, —  all  must  be  taken  into  con- 
sideration in  arriving  at  what  would  be  his  legal  baggage.  Is 
the  passenger  a  young  man  on  his  way  to  enter  college,  or  is 
he  on  a  journey  for  recreation?  Is  he  an  artist  going  to  the 
country  to  sketch,  or  a  military  officer  on  an  expedition  with 
his  command? 

Taking  into  account  these  several  conditions,  it  may  be 
said  that  the  baggage  of  a  passenger  is  such  wearing  apparel 
and  articles  for  personal  necessity,  comfort,  convenience  or 
recreation  as  would  be  needed  by  the  passenger  on  his  journey 
and  to  accomplish  its  object;  that  is  to  say,  it  is  the  ordinary 
effects,  that  are  reasonably  needed  by  one  upon  his  journey 
and  to  accomplish  its  object  that  is  termed  ordinary  baggage. 
In  determining,  therefore,  what  is  baggage,  we  have  to  con- 
sider (1)  the  station  in  life  of  the  passenger,  (2)  his  business 
or  occuption,  (3)  the  object  of  his  journey,  (4)  whether  the 
effects  are  personal  to  him,  and  (5)  are  they  reasonable  in 
amount  for  the  journey  and  its  objects. 

§  668,  (1)  Tlie  station  in  life  of  the  passenger. —  Yery 
much  depends  upon  the  station  in  life  of  the  passenger  in  de- 
termining what  effects  will  be  allowed  him  as  baggage  upon 
his  journey.  It  is  the  ordinary  baggage  — the  ordinary  neces- 
sities for  the  comfort  and  convenience  of  the  particular  per- 
son —  that  are  allowed.  It  will  be  readily  seen  that  the  man 
or  woman  who  lives  in  luxury  and  affiuence  will  ordinarily 
use  different  apparel  and  articles  of  comfort  than  a  poor  man 
or  woman  living  and  occupying  a  different  station  in  life.  One 
of  the  royal  family  of  England,  or  of  any  of  the  countries  of 
44  689 


§§  609,  670.]  CAERIERS    OF    PASSENGEI^.  [PAET    TI. 

the  old  world,  would  no  doubt  carry  different  effects  upon  a 
journey  than  a  man  engaged  in  the  ordinary  pursuits  of  life.^ 

§  669.  (2)  The  business  or  oceupatiou  of  the  trayeler. — 
The  business  or  occupation  of  the  passenger  must  necessarily 
have  very  much  to  do  with  the  baggage  he  would  ordinarily 
carry.  A  merchant  on  his  way  to  the  manufacturing  city  to 
buy  goods  would  carry  different  baggage  than  a  drover  in 
charge  of  a  car  of  live  stock.  Mr.  Justice  Field,  in  Railway 
Co.  V.  Stoift^-  s^id:  "The  contract  to  carry  only  implies  an  un- 
dertaking to  transport  such  a  limited  quantity  of  articles  as 
are  ordinarily  taken  by  travelers  for  their  use  or  convenience, 
such  quantity  depending  of  course  upon  the  station  in  life  of 
the  party,  the  object  and  length  of  his  journey,  and  many 
other  considerations."  Holding  that  surgical  instruments  in 
the  case  of  a  surgeon  in  the  army  traveling  with  troops  con- 
stituted a  part  of  his  baggage,  the  court  say :  "  The  value  of 
the  surgical  instruments  was  properly  included;  instruments 
of  that  character  in  the  case  of  a  surgeon  in  the  army  travel- 
ing with  troops  may  properly  be  regarded  as  part  of  his  bag- 
gage; he  may  be  required  to  use  these  instruments  at  any  time, 
and  must  accordingly  have  them  near  his  person  where  they 
can  be  had  upon  a  moment's  notice." 

§  670.  (3)  The  object  of  the  journey. —  The  law  seeks  to 
recognize  that  as  baggage  which  is  necessary  for  the  comfort 
and  convenience  of  the  traveler  on  his  journey  and  in  accom- 
plishing its  object.  Illustrations  are  numerous.  The  artist  going 
upon  a  sketching  tour  would  need  paints,  brushes,  easels,  and 

1  Hurwitz  V.  Hamburg,  etc.  Packet  passenger  while  traveling.  In  Rail- 
Co.,  56  N.  Y.  Sup.  579.  In  Matz  v.  way  Co.  v.  Fraloff,  100  U.  S.  24,  25 
Railway  Co.,  85  Cal.  329,  it  was  held  L.  ed.  531,  it  was  said,  whether  an 
that  ladies'  jewelry  is  not  a  proper  article  of  wearing  apparel  in  any 
article  of  baggage  to  be  carried  in  particular  case  constitutes  baggage, 
the  trunk  of  a  man  traveling  alone  as  that  term  is  understood  in  the 
so  as  to  I'ender  the  carrier  liable  for  law,  for  which  the  carrier  is  respon- 
its  value  in  case  of  its  loss,  at  least  sible  as  an  insurer,  depends  upon  the 
w^hen  it  is  placed  in  the  trunk  simply  inquiry  whether  it  is  such  in  quan- 
for  the  purpose  of  having  it  trans-  tity  and  value  as  passengers  under 
ported.  But  in  McGill  v.  Rowand,  3  like  circumstances  ordinarily  or 
Pa.  St.  451,  it  was  held  that  where  a  usually  carry  for  personal  use  when 
man  was  traveling   with   his  wife,  traveling. 

whose  jewelry  was  in  a  trunk,  that        279  xj.  S.   (12  Wall.)  272,  2  L.  ed. 

it  might  well  be  held  that  the  jew-  428;  Macrow  v.  Railway  Ca,  L.  R  6 

elry  was  intended  for  the  use  of  the  Q.  B.  621. 

690 


CH.  v.]       EAGGAGE  OR  THE  PASSENGEe's  EFFECTS.      [^  671. 

that  which  would  be  necessary  and  convenient  for  his  work, 
and  such  effects  would  be  legally  held  to  be  his  baggage;  but 
if  the  same  individual  should  be  traveling  to  the  wedding  of 
his  friend,  or  on  a  fishing  oj;  hunting  trip,  his  artist's  tools 
would  hardly  be  considered  as  baggage,  but  instead  he  would 
naturally  take  with  him  clothing  and  baggage  suitable  to  the 
object  of  his  journe}^;  if  hunting  or  fishing,  his  hunting  suits, 
guns,  ammunition,  and  such  articles  as  would  be  needed  on  the 
trip. 

§  671.  (4)  The  effects  must  be  personal  to  the  traveler. — 
It  has  been  held  with  great  unanimity  that  the  effects  carried 
as  baggage  must  be  personal  to  the  passenger.  As  where  a 
wife  purchased  books  for  her  husband  while  abroad  with 
money  which  he  remitted  to  her  for  that  purpose  and  packed 
them  among  her  baggage,  it  was  held  in  an  action  for  loss  of 
the  baggage  and  personal  effects  that  she  could  not  recover,  as 
the  books  did  not  constitute  a  part  of  her  personal  effects.^  On 
the  other  hand,  where  "  a  catalogue  prepared  by  a  traveling 
salesman  at  his  own  expense,  and  which  was  his  own  indi- 
vidual property  and  carried  with  him  as  an  article  conven- 
ient and  necessary  for  use  in  his  business  while  traveling,  was 
lost  with  other  articles  in  a  valise,  it  was  held  that  he  could 
recover  for  it  upon  the  grounds  that  it  was  an  article  of  per- 
sonal baggage."  ^ 

In  Oakes  v.  Railway  Co?  it  was  held  "that  baggage  is  con- 
fined to  such  articles  as  are  usually  carried  as  baggage  for  the 
personal  use  of  the  passenger,  or  for  his  convenience,  instruc- 
tion or  amusement  on  the  journey,  and  does  not  include  that 
which  is  carried  for  the  purpose  of  business,  such  as  merchan- 
dise or  the  like."  And  it  has  been  said  that  whatever  the  pas- 
senger takes  with  him  for  his  personal  use  or  convenience, 
either  with  reference  to  the  immediate  necessities  or  the  ulti- 
mate purpose  of  the  journey,  must  be  considered  personal  bag- 
gage. And  again,  baggage  is  such  articles  as  it  is  usual  for 
persons  traveling  to  take  with  them.  And  so  it  has  been  uni- 
versally held  that  money  necessary  for  the  payment  of  the  ex- 
penses of  a  journey,  which  is  carried  in  the  trunk  of  a  passen- 

iHurwitz  V.  Hamburg,  etc.  Packet  ^staub  v.  Kendrick,  121  Ind.  226, 
Co.,  56  N.  Y.  Sup.  579.  6  L.  R.  A.  619. 

3  20  Oreg.  392,  12  L.  R.  A,  3ia 
691 


§  672.]  CAKRIEKS    OF    PASSENGERS.  [PART   VI. 

ger,  is  part  of  his  baggage,  and,  if  lost  while  in  the  custody  of 
the  carrier  for  transportation,  the  carrier  would  be  liable.^ 

In  Railway  Co.  v.  Berry '^  the  court  say:  "The  carrier  is 
liable,  as  insurer,  for  money  which  the  passenger,  dotia  Jide, 
includes  in  his  baggage  to  pay  traveling  expenses,  and  for  per- 
sonal use  on  his  journey,  provided  no  more  is  taken  than  is 
necessary  or  usual  for  the  passenger  of  like  station,  habits  and 
condition  in  life  on  similar  journeys.  For  any  amount  in  ex- 
cess of  this  .  .  .  the  carrier  is  not  liable,  as  such,  unless 
he  receives  it  with  notice  that  the  quantity  is  greater  than 
is  usually  carried  by  passengers  under  the  same  or  similar  cir- 
cumstances." 

In  Runyan  v.  Railroad  Co?  the  court,  summing  up  the  ques- 
tion as  to  what  is  baggage,  say :  "  He  (the  passenger)  was  en- 
titled to  take  with  him,  for  use,  his  personal  baggage  appro- 
priate to  the  journey  and  its  object;  that  is,  not  only  wearing 
apparel  for  use  and  ornament,  but  also  other  articles,  all  within 
reasonable  limit,  the  use  of  which  was  personal  to  him  during 
his  journey  and  in  accomplishing  its  purposes.  To  illustrate 
the  character  of  such  articles  other  than  wearing  apparel,  it  is 
settled  that  a  sportsman  journeying  for  sport  may  take  his 
gun  case  or  fishing  apparatus,*  an  artist  may  take  his  easel 
when  he  is  on  a  sketching  tour,'^  and  a  student  in  pursuit  of 
study  may  take  his  needed  books  and  manuscripts.'"' 

§  672.  (5)  Must  be  reasonable  in  amount  for  the  journey 
and  its  objects. —  It  is  that  which  is  necessary  for  the  comfort 
and  convenience  of  the  passenger  while  on  his  journey,  and 
for  the  accomplishment  of  the  objects  of  the  journey,  that  is 
legally  considered  to  be  his  baggage.  The  passenger's  personal 
convenience  is  the  prime  consideration.  By  these  necessities 
the  amount  of  his  baggage  is  limited;  it  could  not  reasonably 
be  otherwise,  else  the  passenger  might  transport  large  quanti- 
ties of  goods,  and  the  space  and  power  of  the  carrier  devoted 
to  the  hauling  of  baggage  would,  of  necessity,  be  very  much 

1  Brown    v.    Grand,    9  Wend.   85;  5  Cush.  69,  51  Am.  Dec.  44;  Angell, 
Merrill  v.  Grinnell,  30  N.  Y.  594;  Fair-  Carr.  115;  2  Beach,  Railways,  59. 
fax  V.  Railway  Co.,  73  N.  Y.  167.  3  61  N.  J.  537,  43  L.  R.  A.  284. 

2  60  Ark.   433,    28  L.   R.   A.    501;  4  Hawkins  v.  Railway  Co.,  6  Hill 
Hutcli.  on  Car.   682;  Schoul.  Bailm.  (N.  Y.),  586,  41  Am.  Dec.  767. 
669-71;  Story,  Bailm.  499;  3  Wood,  5  Merrill  v.  Grinnell,  30  N.  Y.  619. 
Ry.  Law,  401 ;  Jordan  v.  Railway  Co.,  <>  Hopkins  v.  Wescott,  6  Blatchf.  64, 

692 


CU,  v.]  BAGGAGE    OK   THE    PASSENGEr's    EFFECTS.  [§  673. 

increased.  As  has  been  said,  "  the  company  may  rely  upon  the 
implied  representation  that  whatever  is  offered  by  the  passen- 
ger as  baggage  is  that  and  nothing  else.  If  it  be  baggage,  the 
baggage  goes  under  the  contact  to  carry;  if  it  is  not,  it  does 
not."  1 

§  673.  What  is  not  baggage. —  As  we  have  seen,  the  arti- 
cles carried  must  be  personal  to  the  passenger  and  for  use 
upon  the  journey,  or  the  objects  of  it,  and  reasonable  in  amount; 
and  so  any  articles  that  are  carried  merely  for  transportation 
are  not  in  a  legal  sense  the  baggage  of  the  passenger.  And  if 
it  should  appear  that  a  larger  amount  of  money  or  other  effects 
than  was  necessary  for  the  expense  of  or  use  on  the  journey,  and 
that  which  is  incident  to  it,  was  carried  by  a  passenger  in  his 
trunk  without  the  knowledge  of  the  carrier,  it  could  not  be 
held  to  be  baggage.  Or,  if  goods  were  transported  in  the 
trunk  of  the  passenger  to  be  delivered  at  the  end  of  the  jour- 
ney to  some  other  person,  or  to  be  sold,  or  used  for  some  other 
purpose  than  that  which  would  be  considered  for  the  personal 
use  of  the  passenger,  such  goods  would  not  be  considered  bag- 
orasre.'^  The  congress  of  the  United  States  has  deemed  it  nee- 
essary  to  enact  a  statute  with  reference  to  the  various  valuable 
articles  shipped  as  freight  or  baggage  on  vessels.^  And  it  has 
been  held  that  under  this  statute  a  lady's  lace  shawl  made  ex- 
clusively of  Chantilly  lace,  under  the  particular  circumstances, 
was  not  baggage.*  And  where  the  plaintiff's  trunk,  which  was 
checked,  contained  among  other  goods  bank-notes  of  a  large 
amount,  it  was  held  that  such  money  could  not  be  considered 
as  included  under  the  term  "  baggage"  so  as  to  render  the  carrier 
liable  for  it.^  So  watches  of  great  value,  which  were  not  in- 
cident to  the  journey,  contained  in  a  traveling  case,  and  addi- 
tional to  the  one  that  was  worn  upon  the  person  of  the  passen- 
ger, a  sack  or  a  muff,  or  a  napkin-ring  carried  by  a  male 
passenger,  have  been  held  not  to  be  legally  baggage,  for  to  hold 

iStimson  v.  Railway  Co.,  98  Mass.  83;  Humphreys  v.  Perry,  148  U.  S. 

83;  Railway  Co.  v.  Bowler,  etc,  Co.,  627,   37   L.   ed.  587;  Railway  Co.  v. 

63  Ohio  St.  274;  Railway  Co.  v.  State,  FralolT,  100  U.  S.  24,  25  L.  ed.  531. 

65  Ark.  303,  41  L.  R.  A.  33;  Railway  »  U.  S.  R.  S.,  sec.  4283. 

Co.  V.  Swift,  79  U.  S.  (12  Wall.)  272;  ^  Ocean   S.  S.  Co.  v.  Way,  90  Ga. 

Railway   Co.   v.  McGahey,   63  Ark.  747,  20  L.  R.  A.  123. 

344.  36  L.  R.  A.  781.  ^  Bank  v.  Brown,  9  Wend.  85. 

i^Stimson  v.  Railway  Co.,  98  Mass. 

693 


§  674.]  CAKEIEKS    OF   PASSENGEES.  [PART   VI. 

them  to  be  baggage  would  be  in  violation  of  the  rule  that  the 
effects  must  be  personal  to  the  convenience,  comfort,  instruc- 
tion or  entertainment  of  the  passenger.^ 

In  Oakes  v.  Railway  Co'}  it  was  held  that  articles  of  what- 
ever kind  that  do  not  properly  come  within  the  descrip- 
tion of  ordinary  baggage  are  not  included  within  the  terras  of 
such  contract,  nor  is  the  carrier  liable  for  their  loss  or  destruc- 
tion in  the  absence  of  negligence.  So  stage  properties,  cos- 
tumes, paraphernalia,  advertising  matter,  etc.,  are  not  articles 
required  for  the  pleasure  or  convenience  or  necessity  of  the 
passenger  during  his  journe}^,  but  are  plainly  intended  for  the 
larger  or  ulterior  purposes  of  carrying  on  the  theatrical  busi- 
ness, therefore  they  do  not  fall  under  the  denomination  of  bag- 
gage. 

§  674.  Sample  trunks  or  commercial  eifects. — As  we 

have  seen,  the  carrier  is  bound  to  carry  for  the  passenger  his 
baggage  —  such  baggage  as  is  personal  to  him  and  belongs  to 
what  is  termed  "  ordinary  baggage,"  as  applied  to  the  particular 
person  and  the  particular  journey;  but  he  is  not  bound  to  carry 
articles  of  merchandise,  or  that  which  is  not  ordinary  baggage, 
unless  he  consents  to  carry  them  as  such  after  having  notice, 
either  express  or  constructive ;  that  is,  such  notice  as  would  be 
indicated  by  facts,  circumstances  or  observation  that  the  arti- 
cles are  not  baggage.  There  should  be  notice  of  some  kind 
to  the  carrier  that  the  articles  contained  in  the  trunk  or  pack- 
age are  not  the  personal  baggage  of  the  passenger  Such  no. 
tice  is  often  inferred  from  the  appearance  of  the  package  con- 
taining the  articles,  or  from  the  knowledge  of  the  servants 
of  the  carrier  that  the  passenger  is  engaged  in  the  business 
of  carrying  such  articles.  The  business  carried  on  by  com- 
mercial travelers  through  the  country  has  come  to  be  so 
well  understood  that  it  is  not  difficult  to  discern  which  are  the 
sample  trunks  and  which  the  trunks  supposed  to  contain  per- 
sonal baggage.  In  Sloman  v.  Railway  Co?  it  was  said :  "  It 
does  not  appear  that  it  was  stated,  in  terms,  to  the  baggage- 
master  what  the  trunks  contained,  but  the  jury  had  the  right 

1  Railway  Co.  v.  Boyce,  73  111.  510;        200  Oreg.  392;  Wilson  v.  Railway 
Belfast   V.  Railway  Co.,  9  H.  L.  556;     Co.,  56  Me.  62. 

Railway  Co.  v.  Shepherd,  8  Exch.  30.        3  67  N.  Y.  208;  Talcott  v.  Railway 

Co.,  159  N.  Y,  661,  54  N.  E.  1. 
694 


CH.  v.]  BAGGAGE   OK   THE    PASSENGER's    EFFECTS.  [§  674. 

to  consider  the  surrounding  circumstances,  the  appearance  of 
the  passenger  and  of  the  articles,  the  conversation  between  the 
passenger  and  the  baggage-master,  and  the  dealings  between 
them;  and  if  they  indicated  that  the  trunks  were  not  ordinary 
baggage,  or  received  or  treated  as  such,  the  jury  had  the  right 
to  draw  the  inference  of  notice,  and  that  they  were  received 
as  freight."  And  wiiere  a  sample  trunk  was  checked  "  without 
any  misrepresentation,  and  without  any  release  of  liability  or 
any  request  therefor,  on  payment  of  a  charge  for  excess  bag- 
gage, which  was  the  same  for  sample  trunks  as  for  ordinary 
baggage,  and  the  baggageman  had  constructive  notice  of  the 
character  of  the  trunk  from  its  appearance  and  from  other  cir- 
cumstances, althougli  there  was  a  rule  of  the  company  prohib- 
iting the  checking  of  sample  trunks  without  a  release  of  lia- 
bility," it  was  held  in  an  action  for  the  loss  of  the  trunk  that 
the  railroad  company  was  liable;  that  from  the  surrounding 
facts  and  circumstances  the  carrier  was  chargeable  with  notice 
that  it  was  a  commercial  traveler's  trunk,  the  court  saying: 
"  This  court  has  held  that  notice  may  be  given  to  the  common 
carrier  by  other  means  than  the  direct  statement  of  the  owner 
that  he  is  a  commercial  traveler  and  that  his  trunk  contained 
samples."  ^ 

Where  the  carrier  knowingly  permitted  passengers,  without 
payment  of  any  extra  charge,  such  passengers  having  purchased 
tickets  for  their  transportation,  to  take  articles  as  personal  bag- 
gage which  were  not  properly  such,  it  was  held  that  the  car- 
rier was  liable  for  their  loss  and  destruction  as  insurers  of  such 
baofffao-e  in  the  same  manner  and  to  the  same  extent  as  if  the 
goods  were  freight."^     The  court  say:  "While  it  is  true  that 

1  Trimble  v.  Railway  Co.,  162  N.  Y.  packages  for  that  purpose  violates 
84,  48  L.  R.  A.  115.  a  regulation  of  the  company  by  so 

2  Oakes  v.  Railway  Co.,  20  Oreg.  doing,  notwithstanding  the  pas- 
392;  Story  on  Bailm.  499;  Railway  senger  or  owner  of  the  goods  has  no- 
Co.  V.  Shepherd,  8  Exch.  80;  Sloman  tice  of  such  regulation."  Butler  v. 
V.  Railway  Co.,  6  Hun,  546.  The  court  Railway  Co.,  3  E.  D.  Smith,  571 ;  Hanes 
say:  "As  to  the  liability  of  the  car-  v.  Railway  Co.,  29  Minn.  161;  Rail- 
rier,  they  are  liable  if  they  know-  way. Co.  v.  Capps  (Tex.),  16  Am.  & 
ingly  undertake  to  transport  mer-  Eng.  Ry.  Cases,  118.  Held,  where  a 
chandise  in  trunks  or  boxes  which  railroad  company,  through  its  bag- 
have  been  received  by  them  for  gage  or  ticket  agent,  receives  arti- 
transportation  in  passenger  trains,  cles  for  transportation  as  baggage 
unless  the  agent  who  receives  the  knowing  at  the  time  that  such  arti- 

695 


§  675.]  CARRIERS    OF    PASSENGERS.  [pART    VI. 

passenger  carriers  are  not  liable  for  merchandise  and  the  like 
when  packed  with  the  traveler's  baggage  if  the  baggage  be  lost, 
yet  if  the  merchandise  be  so  packed  as  to  be  obviously  mer- 
chandise to  the  eye,  and  the  carrier  takes  it  without  objection, 
he  is  liable  for  the  loss."  The  rule,  of  course,  would  be  other- 
wise if  the  passenger  by  deceit  or  misrepresentation  procured 
the  shipment  of  articles  that  were  not  properly  baggage,  as 
baggage,  or  if  there  was  no  such  constructive  notice  as  has 
been  mentioned,  and  the  facts  were  not  known  to  the  servants 
of  the  carrier  that  the  trunks  or  packages  contained  articles 
not  baggage;  in  such  case  the  carrier  would  not  be  liable  as  an 
insurer  for  the  value  of  such  articles  if  they  were  lost,  and  his 
liability  could  only  he  based  upon  his  fault  or  negligence  re- 
sulting in  the  loss  of  the  property. 

§  675.  Payment  of  excess  baggage. —  The  implied  con- 
tract to  carry  the  ordinary  baggage  of  the  passenger  rests  upon 
the  consideration  paid  for  his  transportation;  and  if  articles  not 
baggage,  such  as  merchandise  or  samples  of  traveling  men  with 
the  knowledge  of  the  carrier,  or  after  having  notice  of  the  con- 
tents of  the  trunks  or  packages,  are  carried  as  baggage,  the 
same  consideration  will  support  the  implied  contract  to  safely 
carry,  and  the  carrier  will  be  liable  as  if  it  were  ordinary  bag- 
gage; but  carriers  generally  have  made  a  regulation  as  to  how 
many  pounds  of  baggage  the  passenger  will  be  allowed,  and  that 
all  over  that  amount  shall  be  charged  as  excess  baggage  and  cer- 
tain rates  paid  for  its  carriage;  and  in  case  it  is  merchandise  or 
such  articles  as  are  not  baggage,  that  a  release  of  their  liability 
as  insurers  shall  be  given  them.  Such  regulations  have  been 
generally  conceded  reasonable  and  binding,  so  a  further  and 
another  consideration  is  generally  charged  and  paid  to  support 
the  contract  for  the  carriage  of  excess  baggage,  and  this  con- 
tract creates  a  somewhat  different  relation.  The  duties  and 
liabilities,  however,  of  the  carrier  of  passengers  are  the  same 
whether  the  articles  are  carried  as  baggage  or  upon  a  contract 
supported  by  payment  of  consideration  to  carry  them  as  excess 
baggage.  ^, 

cles  are  not  properly  baggage,  the    was  not   baggage.     Railway  Co.  v. 
company  will  be  responsible  there-    Conklin,  38  Kan.  55;  Hoeser  v.  Rail- 
for  as  a  common  carrier,  and  will  be     way  Co.,  63  Wis.  100. 
estopped  from  denying  that  the  same 

696 


en.  v.]  BAGGAGE    OK   THE    PASSENGEk's    EFFECTS.       [§§  Q7G^  6TY. 

§676.  Reasonable  regulation. —  The  carrier  of  pas- 
sengers may  make  regulations  touching  its  duties  and  liabili- 
ties as  to  baggage,  but  such  regulations  must  be  reasonable, 
and  their  reasonableness  is  ^  question  for  the  jury.^  It  has 
been  held  that  the  carrier  cannot  suddenly  and  without  notice 
to  its  customers  change  its  customs  and  regulations  not  acqui- 
esced in.2  And  where  a  carrier  had  printed  upon  the  ticket 
delivered  to  the  passenger,  "  Good  for  one  continuous  passage 
in  either  direction  between  ]S"ew  York  and  Elizabeth,  N.  J. 
Xo  stop-oflf  allowed.  Free  transportation  allowed  for  150  lbs. 
baggage  (wearing  apparel)  only,  and  company's  liability  ex- 
pressly limited  to  $1.00  per  lb.,"  and  where  the  passenger 
with  such  a  ticket  undertook  to  board  a  train  of  the  defendant 
carrying  certain  packages  in  his  hands  which  were  not  per- 
sonal baggage,  and  was  prohibited  by  the  servants  of  the  com- 
pany for  the  reason  that  the  company  did  not  permit  its  pas- 
sengers holding  such  a  ticket  to  carry  such  packages  upon  its 
train,  it  appearing  that  the  custom  for  a  long  time  had  been 
otherwise,  and  the  passenger  had  no  notice  of  any  change  or 
other  regulation,  the  court,  in  an  action  for  damages,  held  the 
defendant  liable,  and  in  the  opinion  say:  "We  think  if  the 
defendant  company  had,  previous  to  the  denial  of  admission 
of  the  plaintiff  to  their  cars  complained  of,  for  a  long  time  ac- 
quiesced in,  and  made  accommodations  for,  the  carriage  of 
small  packages  of  merchandise  of  its  passengers  as  personal 
baggage,  so  as  to  lead  them  to  accept  and  rely  upon  its  atti- 
tude in  that  respect  as  one  of  its  regulations,  that  it  could  re- 
sume its  right  under  the  law  only  after  reasonable  notice  of 
its  rescission  of  the  regulations  so  made.  It  could  not  sud- 
denly enforce  the  right  resumed  against  passengers  who  were, 
in  good  faith,  traveling  in  reliance  upon  the  previous  regula- 
tion, without  reasonable  notice,  and  ignorant  of,  and  unpre- 
pared for,  any  change  in  it."^ 

§  677.  (xood  faith. —  Good  faith  and  fair  dealing  is  re- 
quired of  the  passenger  toward  the  carrier.    If  from  the  appear- 

1  State  V.  Overton,  24  N.  J.  L.  235,  ^^Runyan  v.  Railway  Co.,  61  N.  J. 

61  Am.  Dec.  671;  Railway  Co.  v.  Ste-  537,  43  L.  R.  A.  284;  Triinballv.  Rail- 

vens,  95  U.  S.   655,  24  L.  R.  A.   535;  way  Co.,  162  N.  Y.  8.5. 

Railway  Co.  v.  Stockyard  Co..  45  N.  ^  Runyan  v.  Railway  Co.,  61  N.  J. 

J.  Eq.  67,  6   L.  R.  A.  855;  Coffee  v.  537,  43  L.  R.  A.  284. 
Railway  Co.,  25  So.  157. 

697 


§  678.]  •         CAREIEES    OF    PASSENGERS.  [PART   VI. 

ance  of  the  trunk  delivered  to  the  carrier  for  transportation  as 
his  baggage,  or  from  the  circumstances  appearing  at  the  time, 
the  carrier  could  not  discover  that  the  effects  being  carried  were 
baggage  —  that  the  contents  of  the  trunk,  or  receptacle,  was 
goods  or  property  other  than  baggage,  he  would  not  be  held 
liable  for  its  loss;  in  such  case  the  passenger  is  bound  to  give 
the  carrier  notice  of  the  contents  of  the  trunk  and  obtain  his 
acquiescence  to  carry  it  as  baggage  if  he  would  make  him  lia- 
ble. The  law  will  not  permit  the  passenger  by  trick,  or  secret 
packing  away  of  articles  not  baggage,  of  which  the  carrier  has 
no  knowledge,  to  hold  him  liable  for  their  loss  or  injury.  In 
Railioay  Co.  v.  Berry '^  the  court  say:  "The  passenger  must 
observe  the  utmost  candor  and  good  faith  in  presenting  his 
baggage  for  transportation,  for  the  carrier  is  only  required  to 
transport  according  to  appearances.  If  the  passenger  presents 
his  baggage  in  a  closed  receptacle,  such  as  is  ordinarily  car- 
ried as  baggage,  in  order  to  lay  upon  the  carrier  the  extraor- 
dinary responsibility  of  insurer,  the  passenger  must  inform  him 
if  it  contains  any  articles  which  the  carrier  is  not  bound  to 
transport  as  baggage.  This  for  the  reason  that  the  carrier, 
when  thus  notified,  may  refuse  to  carry  altogether,  or  accept 
and  charge  an  additional  sum  to  the  passenger's  fare  for  the 
onerous  liability  he  thus  assumes." 

§  678.  The  owner  of  the  baggage  should  be  a  passenger. — 
The  contract  for  carrying  the  baggage  is  incident  to  the  con- 
tract for  the  carriage  of  the  owner  as  a  passenger,  and,  as  we 
have  seen,  it  rests  upon  the  same  consideration.  It  would 
therefore  follow,  if  the  owner  of  the  baggage  is  not  a  passen- 
ger, the  liability  of  the  carrier,  as  a  carrier  of  passengers, 
could  not  exist,  and  if  liable  at  all  it  must  rest  upon  other 
grounds.  If  the  carrier  had  consented  to  carry  the  baggage 
and  received  a  valuable  consideration  for  it,  he  would,  of  course, 
become  liable  as  a  common  carrier  of  freight;  if  he  consented 
to  carry  it  without  compensation,  he  would  be  liable  as  a  gra- 
tuitous bailee,  liable  only  for  gross  negligence.^ 

1 60  Ark.  433,  38  L.  R.  A.  501,  citing    24;  3  Beach,  Railway  Law,  902:  Da- 
Schoul.  Bailm..  sec.  669  efseg.;  Hutch,     vis  v.  Railway  Co.,   22  111.   278  and 
CaiT.,  sec.  685;  Edw.  Bailm.,  sec.  529;    other  authorities. 
8  Wood,  Railway  Law,  sees.  401,  406,        ^  Collins  v.  Railway  Co.,  10  Cash. 
408;  Railway  Co.  v.  Fraloff,  100  U.  S.     (Mass.)  506. 

698 


CH.  v.]  BAGGAGE    OR    THE    PASSENGER's    EFFECTS.  [§  679. 

§  679.  Should  the  owner  accompany  the  baggage. —  If  the 

relation  of  passenger  and  carrier  exists  between  the  carrier 
and  the  owner,  it  would  not  be  necessary  that  he  should  go  upon 
the  same  train  or  boat  with  the  baggage,  if  the  circumstances 
were  such  that  the  carrier  could  be  said  to  have  had  notice 
and  consented,  or  if  the  carrier  had  sent  the  baggage  by  an- 
other train,  or  by  another  line,  without  consulting  the  passen- 
ger, and  without  his  consent.  It  has  been  held  that  when  a  pas- 
senger making  a  journey  over  connecting  lines  holds  tickets  over 
such  lines,  and,  desiring  to  proceed  upon  his  journey,  found  his 
basrsraore  had  not  arrived  so  he  could  check  it  for  the  train  he  was 
about  to  take,  and  the  carrier  agreed  to  send  it  when  it  did  arrive, 
by  the  first  train,  that  in  such  case  the  carrier  would  be  held  to 
the  usual  liability.^  But  if  there  is  no  agreement  or  consent  or 
voluntary  sending  by  a  different  way  by  the  carrier,  it  seems 
that  the  carrier  is  entitled  to  have  the  owner  accompany  his 
baggage,  for  the  reason  that  to  some  degree  it  might  lessen  the 
liability  of  the  carrier,  as  in  case  of  disaster  by  wreck  or  fire, 
or  some  other  loss,  especially  at  the  destination  point,  for  in 
such  case  the  passenger  might  relieve  the  carrier  of  the  bag- 
gage, and  thus  save  its  loss  or  destruction.  A  case  often  cited 
is  Collins  V.  Railway  Go.^  where  the  passenger  went  by  a  dif- 
ferent train  upon  the  same  road  and  the  goods  were  lost  with- 
out any  gross  negligence  of  the  carrier,  or  any  conversion  by 
him ;  it  was  held  that  the  carrier  was  not  liable  for  the  loss. 
The  court  say:  "  It  is  easy  to  perceive  that  the  omission  of  the 
plaintiff  to  accompany  them  (the  baggage),  as  he  informed  the 
defendant's  agent  he  should,  contributed  materially  to  the  loss, 
and  that  what  might  have  been  a  very  proper  and  suitable  dis- 
position of  them  at  the  station  at  Lawrence,  under  the  reason- 
able belief  that  the  owner  of  them  was  present  to  take  charge 
of  them,  might  have  been  one  of  hazard  and  exposure  to  loss 
in  his  absence." 

Where  a  carrier  received  baggage  under  the  mistaken  sup- 
position that  it  belonged  to  passengers  who  had  purchased 
tickets  over  its  road,  and  that  the  transportation  of  the  bag- 

1  Warner  v.  Railway  Co.,  23  Iowa,     not  obliged  to  receive  as  baggage  the 
176.     In  Graffin  v.  Railway  Co.,   67    trunk  of  one  who  does  not  go  by  the 
Me.  234,  15  Am.  Ry.  Rep.  372,  it  was     same  train, 
held  that  the  railroad  company  was        ^lo  Cush.  (Mass.)  506. 

699 


-§§  680,  681.]  CAKEIERS    OF    PASSENGERS.  [PAET    VI. 

gage  was  consequently  paid  for;  and  without  intending  to 
make  any  charge  for  the  transportation,  and  the  owner  of  the 
baggage  erroneously  supposed  that  in  purchasing  tickets  to 
the  destination  of  the  baggage  over  another  road  he  had  paid 
for  the  transportation  by  the  carrier  to  which  he  had  deliv- 
ered the  baggage,  it  was  held  that  there  was  no  implied  con- 
tract for  the  transportation  of  the  baggage,  and  that  the  carrier 
owed  to  the  owner  the  duty  only  of  abstaining  from  anything 
amounting  to  wilful  or  wanton  injury  to  his  property  while  in 
its  possession,  and  that  the  carrier  was  not  liable  for  its  de- 
struction in  common  with  their  own  property  caused  by  at- 
tempting to  run  the  train  in  which  it  was  placed  upon  an 
unguarded  bridge,  which  was  and  long  had  been  so  defective 
that  it  could  not  stand  such  a  burden.^  But  it  has  been  held 
that  it  would  be  sufficient  if  the  baggage  was  accompanied  by 
one  who  had  an  interest  in  the  bagg'ao^e,  and  who  ordinarily 
would  represent  the  owner  of  it ;  as,  for  example,  where  the 
wife  of  the  owner  accompanied  the  baggage.^ 

§  680.  Baggage  of  one  riding  upon  a  free  pass. —  If  there 
is  no  consideration  for  the  carriage  of  the  passenger  —  if  it  is 
a  mere  gratuity, —  then  there  can  be  no  consideration  for  the 
contract  incident  to  it,  and  the  carriage  of  the  bag'O'ao'e  is 
gratuitous;  therefore  the  carrier  in  that  case  would  be  a  bailee 
for  the  sole  benefit  of  the  bailor  and  subject  only  to  the  liabil- 
ity of  such  a  bailee.  The  rule  would  be  different,  however,  if 
there  was  a  consideration  for  the  giving  of  the  pass,  as  where 
some  service  was  rendered  the  carrier. 

§  681.  Liability  of  the  carrier  for  baggage  under  liis  ex- 
elusive  control. —  It  may  be  said  generally  that  for  baggage 
■of  the  passenger  that  is  under  the  exclusive  control  of  the  car- 
rier, the  liability  of  the  carrier  is  that  of  an  insurer,  or  of  a 
carrier  of  goods.^ 

1  Curtis  V.  Railway  Co.,  74  N.  Y.  Hawkins  v.  Hoffman,  6  Hill  (N.  Y.), 
116-121.  586;  Campbell  v.  Perkins,  8  N.  Y.  430; 

2  Beers  et  ux.  v.  Railway  Co.,  67  Merrill  v.  Grinnell,  30  N.  Y.  494;  Fla- 
Conn.  417,  34  Atl.  541.  herty  v.   Greenman,  7  Daly  (N.  Y), 

sSeasongood  V.  Railway  Co.,  14Ky.  481.  When  shipped  over  different. 
L.  R.  430;  Bank  v.  Brown,  9  Wend,  routes  by  the  agent  of  the  company. 
f?51,  21  Am.  Dec.  129;  Cole  v.  Good-  liable  as  an  insurer.  Estes  v.  Rail- 
win,  19  Wend.  251,  33  Am.  Dec.  470;     way  Co.,  7  N.  Y.  Sup.  574. 

700 


CH.  v.]  BAGGAGE    OK    THE    PASSENGER's    EFFECTS.  [§  682, 

§  682.  Hand  bfiggage. —  In  determining  what  articles  are 
legally  hand  baggage  the  same  rules  apply  that  have  already 
been  discussed.  By  hand  baggage  is  meant  those  smaller  arti- 
cles of  baggage  usually  carried  in  hand  bags,  valises  or  such 
like  small  packages;  such  articles  of  apparel  as  are  necessary 
to  the  comfort  and  needs  of  the  passenger  on  his  journey,  and 
which  he  usually  keeps  near  him  while  being  transported  in 
the  vehicle  of  the  carrier.  It  may  include  an  amount  of  money 
carried  in  his  valise  or  traveling  bag,  or  under  some  circum- 
stances in  his  clothing,  carried  for  the  expenses  of  his  journey 
and  consisting  of  a  reasonable  amount  for  other  purposes.  The 
question  of  the  duty  and  the  liability  of  the  carrier  seems  ta 
depend  upon  who  has  the  custody  or  control  of  the  baggage. 
If  the  passenger  has  the  entire  custody  and  control  of  the 
baggage  to  the  exclusion  of  the  carrier,  if,  as  has  been  said, 
"  there  exists  the  animo  custodtendi  on  the  part  of  the  traveler 
to  the  exclusion  of  the  carrier,"  then  the  carrier  cannot  be  held 
as  an  insurer  as  in  the  case  of  baggage  in  the  entire  custody 
and  control  of  the  carrier,  and  will  not  be  liable  at  all  unless 
guilty  of  negligence  which  results  in  its  loss  or  damage,  in  the 
absence  of  contributory  negligence  on  the  part  of  the  passen- 
ger. The  cases  are  numerous  upon  this  subject.  Where  a  pas- 
senger's baggage  was  placed  on  a  seat  near  an  open  widow  by 
the  porter  of  the  caV,  and  while  the  car  was  standing  in  the 
depot  the  passenger  left  the  car,  but  his  wife,  who  was  traveling 
with  him,  remaining  within  and  walked  up  and  down  the  aisle, 
then  went  out  on  the  platform,  and  then  sat  down  in  a  seat  fac- 
ing the  baggage,  and  the  baggage  was  stolen,  it  was  held  in  an 
action  for  the  loss  that  it  was  a  question  for  the  jury  whether 
the  passenger  or  his  wife  was  negligent.^  And  where  a  pas- 
senger who  was  attempting  to  close  the  car  window  dropped 
her  travelincr  baff  out  of  the  window,  it  was  held  she  could  not 
recover,  though  tlie  bag  contained  articles  of  great  value,  and 
the  conductor,  who  was  at  once  requested  to  do  so,  refused  to 
stop  the  train  to  enable  the  passenger  to  recover  the  property. 
In  the  opinion  of  the  court,  Mr.  Justice  Grey  said:  "She  did 
not  intrust  her  traveling  bag  to  the  exclusive  custody  and  care 
of  the  defendant's  servants,  but  kept  it  in  her  own  immediate 
possession  without  informing  the  defendant  of  the  value  of  its 

1  Dawley  v.  Palace-Car  Co.,  169  Mass.  315. 
701 


§§  -683-685.]  CARRIERS    OF    PASSENGERS.  [PART   VI. 

contents  until  after  it  had  dropped  from  her  hands  through 
the  open  window."  But  where  a  passenger  surrendered  his 
hand  baggage,  to  the  agent  of  a  transfer  company  to  be  con- 
veyed from  one  depot  to  another,  and  it  was  lost,  the  company 
was  held  liable;  this,  of  course,  rested  upon  the  fact  of  the 
control  of  the  baggage  being  in  the  transfer  company.^ 

§  683.  Sleepiug-car  companies. —  The  duties  and  liabilities 
of  sleeping-car  companies  to  care  for  hand  baggage  and  per- 
sonal effects  of  the  passenger  taken  into  their  cars  has  already 
to  some  extent  been  discussed.^  The  question  is  one  of  negli- 
gence, to  be  determined  by  all  the  circumstances  of  the  partic- 
ular case.  It  may  perhaps  be  said  that  greater  care  of  the 
baggage  and  effects  of  the  passenger  is  required  of  the  sleep- 
ing-car company  than  of  the  servants  employed  upon  the  ordi- 
nary day-coach  of  a  railroad  company;  that  is  to  say,  ordinary 
diligence  in  the  one  case  would  be  a  greater  deo^ree  of  dili- 
gence  than  in  the  other,  because  the  sleeping-car  company 
holds  out  to  the  public  that  they  will  assume  the  duty  of  car- 
ing for  the  passenger  and  his  effects  which  are  placed  in  the 
care  of  their  servants. 

§  684.  Liability  for  theft  of  servants. —  The  passenger  im- 
pliedly has  the  guaranty  of  the  company  that  its  servants  can 
be  trusted,  and  if  they  steal  from  the  passenger  his  baggage 
or  effects  the  company  is  liable.  Where  the  master,  by  con- 
tract or  by  operation  of  law,  is  bound  to  do  certain  acts,  he 
cannot  excuse  himself  from  liability  upon  the  ground  that  he 
has  committed  that  duty  to  another,  and  that  he  never  author- 
ized such  person  to  do  the  particular  act.  Being  bound  to  do 
the  act,  if  he  does  it  by  another  he  is  treated  as  having  done  it 
himself;  and  the  fact  that  his  servant  or  agent  acted  contrary 
to  his  instructions  without  his  consent,  or  even  voluntarily, 
will  not  excuse  him.^ 

§  685.  A  high  degree  of  ordinary  diligence  required. — 
The  liability  of  the  sleeping-car  company  for  the  baggage  of 
its  passengers  is  not  that  of  an  insurer,  but  the  company  is 

iStaub  V.  Kendrick,  121  Ind.  226.  Tenn.  53,  21  L.  R  A.  298;  Pullman 

2  Ante,  %U1  et  seq.;  Dawley  V.  Fed-  Car  Co.  v.  Mathews,  74  Tex.  655; 
ace  Car  Co.,  169  Mass.  315.  Pullman   Car  Co.  v.  Martin,  95  Ga. 

3  Wood,  Master  and  Servant,  sec.  3U,  29  L.  R  A.  498;  111.  Cent  R  Co. 
321;  Pullman  Car  Co.  v.  Gavin,  93  v.  Handy,  63  Miss.  709. 

703 


en.  v.]  BAGGAGE    OR    THE    PASSENGEr's    EFFECTS.  [§  686. 

held  to  ordinary  diligence  and  watchfulness  over  the  effects  of 
its  passengers  placed  in  its  custody;  and  it  may  be  said  that 
this  ordinary  diligence,  because  of  the  circumstances  and  sur- 
roundings, and  because  of  the  fact  that  the  passenger  has 
submitted  his  effects,  if  not  his  own  safety,  to  the  watchful 
care  and  diligence  .of  the  servants  of  the  sleeping-car  company 
at  night  while  he  sleeps,  would  demand  a  ver}''  high  degree  of 
diligence.  All  his  effects  are  surrendered  to  the  vigilance  and 
watchfulness  of  the  servants  of  the  company,  and  he  is  depend- 
ent upon  them  for  their  care  and  custody,  and  so  in  such  case 
it  would  seem  that  it  is,  at  all  events,  a  high  degree  of  ordinary 
care  that  will  be  required  of  the  company.^ 

§686.  Mixed  custody  of  passenger  and  carrier  —  Is  the 
liability  of  steamship  company  and  innkeeper  the  same?  — 
A  distinct  and  separate  class  of  cases,  with  different  phases  of 
liability,  are  cases  where  the  custody  of  the  baggage  may  be 
said  to  be  "  a  mixed  custody  of  the  ])assenger  and  the  carrier;  " 
as,  for  example,  where  the  baggage  is  placed  in  the  state-room 
of  the  passenger  upon  the  steamer  and  he  is  given  the  key  to 
the  room,  or  in  the  compartment  of  the  car  upon  which  he  is 
being  conveyed,  which  he  occupies  exclusively  and  of  which  he 
has  the  entire  control.  So  great  is  the  similarity  between  an  inn 
or  hotel  and  a  passenger  steamship  where  the  passengers  are 
roomed,  boarded  and  cared  for  upon  their  voyage,  that  some 
of  the  courts  have  declared  that  it  is  a  floating  inn,  and  that 
the  liability  of  the  steamship  company  operating  these  great 
lines  of  steamers  is  the  same  as  that  of  an  innkeeper.  The 
similarity  certainly  exists  and  the  argument  is  one  of  great 
force.  A  room  is  assigned  to  the  passenger  where  he  can  sleep 
at  night,  and  stay  if  he  desires  through  the  day;  he  is  given  a 
key  to  the  room,  and  may  appropriate  it  as  fully  and  exclu- 
sively as  does  a  guest  at  a  hotel.  His  baggage  is  taken  to  his 
room  as  it  is  at  a  hotel;  the  servants  of  the  steamship  having 
charge  of  this  department  have  access  only  to  attend  to  the 

1  A  sleeping-car  company  is    not  Diehl,  84  Ind.  474,  43  Am.  Rep.  102. 

liable  as  an  insurer  of  a  passenger's  Bound  to  use  reasonable  care,  etc. 

eflfects,  but  only  as  a  bailee  for  hire.  Lewis  v.  Sleeping-Car  Co.,  143  Mass. 

Root  V.  Sleeping-Car  Co.,  28  Mo.  App.  267;  Carpenter  v.  Railway  Co.,  124 

199;  Efron   v.  Pullman   Car  Co.,  59  N.  Y.  53. 
Mo.   App.   641;   Sleeping-Car  Co.    v. 

703 


§  6S6.]  CARRIERS    OF    PASSENGERS.  [PART    VI. 

wants  of  the  passenger  and  to  attend  to  keeping  the  room  in 
order  as  in  a  hotel;  when  he  leaves  his  room  he  may  lock  the 
door  and  take  with  him  the  key  as  at  a  hotel;  if  he  has  valu- 
ables he  may,  and  is  generally  requested  to,  deposit  them  with 
the  purser  of  the  boat  for  safe-keeping;  his  meals  are  served  in 
the  dining-room  of  the  steamer,  and  he  lives  upon  the  steamer 
the  same  as  he  lives  at  a  hotel;  the  custody  of  his  baggage  is  a 
mixed  custody  of  himself  and  the  carrier,  as  at  a  hotel  it  is  a 
mixed  custody  of  himself  and  the  hotel  proprietor  or  his  serv- 
ants. The  authorities,  however,  do  not  agree  upon  this  ques- 
tion, but  it  would  seem  that  the  greater  force  of  reasoning, 
which  means  the  greater  weight  of  authority  if  not  the  greater 
number  of  cases,  is  with  the  contention  that  such  steamships 
are  liable  as  innkeepers,  though  some  of  the  authorities  con- 
tend with  a  considerable  degree  of  force  that  steamships  are 
not  floating  inns,  and  that  the  steamship  company's  liability  is 
not  the  same  as  that  of  an  innkeeper;  and  that  to  hold  the  steam- 
ship company  for  loss  of  baggage  that  is  in  the  custody  of  the 
passenger  it  is  necessary  to  show  that  the  carrier  was  guilty  of 
negligence  which  resulted  in  its  loss  or  injury.* 

The  supreme  court  of  Michigan  divided  upon  this  question 
in  McKee  v.  Owen;  ^  Judge  Christiancy  and  Judge  Cooley  hold- 
ing that  the  steamship  is  an  inn,  and  that  the  liability  for 
baggage  lost  or  injured  is  that  of  an  innkeeper.  The  opinion 
of  Judge  Christiancy  is  strong  and  lucid.  He  says  in  part: 
"  But  when  a  steamer  is  fitted  up  with  regular  sleeping  apart- 
ments, and  all  the  appliances  for  boarding  and  lodging  her  pas- 
sengers as  at  an  inn,  and  the  owners  and  managers  hold  them- 

1  An  ocean  steamship  company  is  board   and  lodging."    In  Abbott  v. 

not  responsible  as  a  common  carrier  Bradstreet,  55  Me.  530,  it  was  held 

or  an  innkeeper  for  the  baggage  of  the  carrier  was  not  liable  for  monej- 

a  passenger  which  he  keeps  in  his  stolen  from  the  pocket  in  absence  of 

own  possession  in  his  state-room,  but  proof  that  the  robbery  was  by  one 

must  answer  in  such  cases  for  its  of  the  employees.     Steamship  com- 

negligence    like    other    bailees    for  pany  not  liable  for  wearing  apparel 

hire.     American    Steamship    Co.  v.  or  money  which  is  not  delivered  to 

Bryan,  88  Pa.  St.  446.     And   Clark  the  oflacer  of  the  boat  for  safe-keep- 

V.  Burns,  etc.  Co.,  118  Mass.  275,  held  ing.     Crystal  Palace  v.  Vanderpool, 

"the  owner  of  a  steamship  carrying  55  Ky.  302;  Del  Valle  v.  Richmond, 

jjassengers  for  hire  is  not  an  inn-  27  La.  Ann.  90. 
keeper,  although  the  passenger  pays        '  15  Mich.  115-129. 
a    round     sum    for    transportation, 

704 


CH.  Y.]  BAGGAGE    OR   THE    PASSENGEr's    EFFECTS.  [§  686, 

selves  out  to  the  traveling  public  as  furnishing  such  accommo- 
dations, and  by  these  superior  advantages  induce  travelers  (as 
they  naturally  must)  to  prefer  this  to  the  less  comfortable  mode 
of  traveling  by  railroads  and  st,age-coaches,  or  even  by  vessels 
without  such  accommodations,  when  they  receive  the  fare  of  a 
passenger,  which  includes  not  only  his  passage,  but  his  board 
and  sleeping  room  and  bed,  and  when  that  room  is  assigned  to 
him  and  he  retires  to  it  for  the  night,  the  whole  transaction,  it 
seems  to  me,  carries  with  it  an  invitation  to  make  use  of  the 
room  and  the  bed  for  the  purposes  and  in  the  manner  for  which 
they  were  obviously  designed;  in  other  words,  to  lay  aside  his 
clothing  and  to  go  to  sleep  there.  And  unless  he  is  expected 
to  sleep  with  his  eyes  open,  and  his  faculties  upon  tKe  alert,  he 
is  invited  to  lay  aside  all  the  vigilance  he  would  be  expected 
to  exercise  when  awake,  and  to  trust  himself  and  his  clothing 
and  such  money  and  property  as  he  may  have  about  him,  and 
as  it  is  usual  for  passengers  to  carry  in  their  clothing,  to  the 
protection  afforded  by  the  room,  and  the  vigilance  to  be  ex- 
ercised by  those  in  charge  of  the  boat.  And  the  latter  must, 
in  the  absence  of  any  usage,  request  or  notice  to  the  contrary, 
be  held  to  assent  that  the  passenger  shall  leave  such  clothing 
and  contents  at  any  convenient  place  in  the  room,  instead  of 
having  to  call  the  steward,  clerk  or  other  officer  or  servant  of 
the  boat  to  take  it  into  his  actual  or  manual  custody  —  a  pro- 
ceeding which  (as  it  must  take  place  after  the  passenger  is  un- 
dressed) would  be  somewhat  awkward  in  the  case  of  a  lady  pas- 
senger at  least.  And,  having  been  thus  invited  to  rely  upon 
the  protection  of  his  room,  and  their  vigilance  instead  of  his 
own,  the  invitation,  it  seems  to  me,  carries  with  it  an  assur- 
ance that  they  will  be  responsible  in  the  meantime  for  all 
losses  of  such  clothing  and  contents,  from  which  he  might  by 
his  own  vigilance  have  protected  himself  when  up  and  awake. 
If  they  do  not  thereby  assume  this  responsibility,  then  it  is  no 
'  figure  of  speech,'  but  a  literal  truth,  to  say  that  by  their  in- 
vitation the  passenger  has  been  lulled  into  a  false  security.  I 
express  no  opinion  upon  the  question  whether  the  liability  of 
th^  defendants  in  respect  to  the  loss  of  such  money  and  prop- 
erty in  other  modes  or  from  other  causes  would  be  commen- 
surate or  identical  with  that  of  an  innkeeper.  The  facts  of 
this  case  do  not  call  for  an  opinion  upon  a  question  as  broad  as 

45  705 


§  686.]  CAKEIERS    OF    PASSENGERS.  [PAKT    VI. 

this.  But  so  far  as  relates  to  the  facts  of  this  case,  the  loss 
of  this  money  and  chain  in  the  manner  and  under  the  circum- 
stances the  evidence  tended  to  prove,  I  think  the  assurance  held 
out  by  the  defendants  to  the  plaintiff  is  the  same  as  that  held 
out  by  the  innkeeper  to  a  guest  occupjnng  a  bed-room  at  his 
inn;  and  that  the  responsibilit}''  of  the  defendants  for  the  loss 
of  the  chain  and  so  much  of  the  money  as  should  be  found  rea- 
sonable for  the  expenses  of  the  journey  is  the  same  as  that  of 
the  innkeeper  for  a  loss  occasioned  in  the  same  way;  and  that 
the  responsibility  rests  upon  precisely  the  same,  and  all  the 
same  reasons  in  both  cases;  and  this,  whether  the  money  and 
chain  were  stolen  through  the  window  from  without,  or  by  the 
stranger  lady  who  had  been  assigned  to,  and  occupied  the  room 
with,  the  plaintiff,  without  any  choice  or  agency  of  hers,  and 
by  the  act  of  the  proper  authorities  of  the  boat.  Had  the  lady 
been  a  traveling  companion  of  the  plaintiff,  the  case,  as  to  this 
point,  would  have  been  different,  and  so,  probably,  if  she  had 
been  assigned  to  the  same  room  at  the  plaintiff's  request." 

A  late  case  in  New  York  {Adams  v.  Steamboat  Co})  holds  to 
the  same  doctrine,  where  money  was  taken  from  the  clothing 
of  the  passenger  occupying  a  state-room  during  the  night,  the 
doors  being  locked  and  the  windows  fastened.  The  court  say: 
"  The  relations  that  exist  between  a  steamboat  company  and 
its  passengers,  who  have  procured  state-rooms  for  their  com- 
fort during  the  journey,  differ  in  no  essential  respect  from  those 
that  exist  between  the  innkeeper  and  his  guests.  The  passen- 
ger procures  and  pays  for  his  room  for  the  same  reasons  that  a 
guest  at  an  inn  does.  There  are  the  same  opportunities  for 
fraud  and  plunder  on  the  part  of  the  carrier  that  were  origi- 
nally supposed  to  furnish  a  temptation  to  the  landlord  to  violate 
his  duty  to  the  guest.  A  steamer  carrying  passengers  upon 
the  water,  and  furnishing  them  with  rooms  and  entertainment, 
is  for  all  practical  purposes  a  floating  inn,  and  hence  the  duties 
which  the  proprietors  owe  to  the  passengers  in  their  charge 
ought  to  be  the  same.  I*s'o  good  reason  is  apparent  for  relax- 
ing the  rigid  rule  of  the  common  law  which  applies  as  between 

1 151  N.  Y.  163,  34  L.  R.  A.  683;  Pur-    4r)3;  Mudgett  v.   Bay  State,  etc.,  1 
vis  V.  Coleman,  21   N.  Y.  Ill:  Van     Daly  (N.  Y.),  157. 
Horn  V.  Kermit,  4  E.  D.  Smith  (N.  Y), 

706 


CH.  v.]  BA.GGAGE    OE    THE   PASSENGEr's    EFFECTS.       [§§  687,  688. 

innkeeper  and  guest,  since  the  same  considerations  of  public 
policy  apply  to  both  relations." 

§  687.  The  baggage  of  a  steerage  passenger. —  The  baggage 
of  a  steerage  passenger  is  usually  taken  possession  of  by  the 
passenger,  and  his  possession  is  exclusive  to  himself,  thus  re- 
lieving the  steamship  company  from  liability  as  an  insurer, 
their  liability  only  resting  upon  proof  of  negligence  upon  the 
part  of  the  carrier  which  resulted  in  the  loss  or  injury  of  the 
baggage.  And  where  a  steerage  passenger  took  entire  charge 
and  control  of  his  baggage,  taking  it  into  the  steerage,  placing 
it  under  his  berth  and  fastening  it  to  his  berth  with  ropes,  and 
during  the  voyage  it  was  stolen,  it  was  held  that  the  steamship 
company  was  not  liable.^ 

§  688,  Termination  of  liability. —  The  object  of  the  con- 
tract to  carry  the  baggage,  which  we  have  seen  is  an  implied 
contract,  is  to  deliver  it  at  the  end  of  the  journey,  or  to  the 
passenger  who  procured  it  to  be  carried  where  he  shall  demand 
its  delivery.  Upon  the  part  of  the  passenger  it  is  presumed 
that  he  is  anxious  to  receive  it  at  once  upon  its  arrival ;  upon 
the  part  of  the  carrier,  that  he  is  ready  and  willing  to  deliver 
it  to  the  passenger  at  once  upon  its  arrival  at  the  place  of  desti- 
nation. The  liability  of  the  carrier  terminates  upon  delivery 
to  the  passenger  of  his  baggage  in  good  condition  at  the  end 
of  his  journey,  or  wherever  it  may  be  called  for  by  the  pas- 
senger and  delivered  to  him  by  the  carrier.  So  it  follows  that 
it  is  the  duty  of  the  carrier  not  only  to  safely  carry  the  bag- 
gage, but  of  the  passenger  to  at  once  upon  his  arrival  at  his 
destination,  or  within  a  reasonable  time,  to  call  for  and  re- 
ceive it. 

The  authorities  are  to  the  effect,  with  but  very  little  if  any 
dissent,  that  it  is  the  duty  of  the  passenger  to  receive  the  bag- 
gage within  a  reasonable  time,  and  they  generally  hold  that  a 
reasonable  time  is  not  later  than  the  same  occasion  upon  which 
he  arrives  at  his  destination;  that  it  would  not  be  a  reasonable 
time  where  the  passenger  waits  until  the  next  day  before  taking 
the  baggage  away.  And  so  it  was  held  that  where  a  passenger 
who  leaves  his  l)aggage  upon  a  depot  platform  merely  because 
on  his  arrival  after  eleven  o'clock  at  night  there  were  no  con- 
veyances running  by  which  he  could  take  it  away,  and  it  was 

I  Cohen  v.  Frost,  9  N.  Y.  Super.  Ct.  335. 

707 


§  6S9.]  CAKEIEES    OF   PASSENGERS.  [PART   VI. 

burned  in  the  depot  during  the  night,  that  the  railroad  com- 
pany was  not  liable  as  a  common  carrier,  but  only  as  a  ware- 
houseman.^ The  passenger  may  take  his  baggage  from  the 
custody  of  the  carrier  at  any  time  and  terminate  the  relation. 
§  689.  Failure  of  carrier  to  deliver  baggage. —  The  liability 
of  the  carrier,  of  course,  depends  upon  its  failure  to  perform  its 
duty  toward  the  passenger,  and  so  if  he  fails  to  deliver  the 
baggage  to  the  passenger  when  demanded,  or  at  its  destination, 
he  would  be  liable.  If,  however,  the  failure  of  the  carrier  was 
the  result  of  the  fault  or  contributory  negligence  of  the  pas- 
senger, the  carrier  would  not  be  liable;  as  where  the  loss  oc- 
curred by  reason  of  the  passenger  taking  his  baggage,  without 
the  consent  of  the  officers  of  the  steamer,  to  his  state-room,  which 
could  not  be  locked  and  from  which  it  was  stolen,  it  was  held 
the  carrier  was  not  liable.  But  if  the  loss  occurs  because  of 
the  fault  of  the  carrier,  and  there  is  no  contributory  fault  on 
the  part  of  the  passenger,  the  carrier  will,  of  course,  be  liable. 
As  where  the  baggage  or  property  committed  to  the  carrier 
was  brought  by  its  negligence  under  the  operation  of  natural 
causes  that  worked  its  destruction,  or  was  exposed  to  such 
cause  of  loss,  it  was  held  that  the  carrier  was  responsible.^  And 
so  it  would  follow  that  a  common  carrier  would  not  be  exempted 
from  liability  for  a  loss,  even  though  it  takes  place  because  of 
an  act  of  God,  if  the  carrier  has  been  guilty  of  any  previous  neg- 
ligence or  misconduct  which  brings  the  property  into  contact 
with  the  destructive  forces  of  the  actus  Dei,  or  unnecessarily 
exposes  it  thereto.^ 

1  Railway  Co.  v.  Lyon,  123  Pa.  St.  v.  McGahey,  63  Ark.  344,  36  L.  R  A. 

140.     The  responsibility  of  a  railroad  781;  Gleason  v.  Transp.  Co.;  32  Wis. 

company  for  baggage  as  a  carrier  85,  14  Am.  Rep.  716. 
after  it  reaches  the  destination  of  the        2  Wald  v.  Railway  Co.,  162  111.  545, 

passenger  continues  only  until  he  has  35  L.  R.  A.  356. 
had  a  reasonable  time  and  oppor-        3  Wald  v.  Railway  Co.,  swpra. 
tunity  to  take  it  away.    Railway  Co. 

708 


CHAPTER  YI. 


ACTIONS  AGAINST  COMMON  CARRIERS. 


.  Actions  Against  Common  Car- 
riers OF  Goods. 
i  690.  The  basis  of  the  actions. 

691.  As  to  what  actions  will  lie. 

692.  Even  if  there  is  a  special 

contract. 

693.  The  advantages  of  the  action 

ex  delicto. 

694.  For  refusal  to  carry  the 

goods. 

695.  The  parties. 

696.  The  consignee. 

697.  One  having  a  special  prop- 
erty in  the  goods. 

698.  The  consignor. 

699.  The  defendant. 

THE   PLEADINGS. 

700.  Pleadings  follow  general  rules. 


701. 


Defenses. 


THE  proofs. 
702.  What    proofs    should  be   ad- 
duced. 
•703.  Negligence. 

704.  Defendant's  proofs. 

DAMAGES. 

705.  Of  what  they  generally  con- 

sist. 

706.  Actual,    exemplary,  punitive 

or  vindictive  damages. 

707.  Exemplary  damages  confined 

to  liberal,  compensatory  or 
actual  damages. 

708.  Liability  of  principal  or 

master  for  acts  of  agents  or 
servants. 

709.  Damages  for  refusal  to  receive 

and  transport. 


§  710.  For  loss  or  injury  in  transit. 

711.  Shipper   bound  by  the  value 

placed  upon  his  goods  when 
shipped. 

712.  Where  the  goods  are  not  mer- 

chandise and  not  market- 
able. 

713.  Goods  shipped  to  be  de- 
livered on  contract  of  sale. 

714.  Failure  to  deliver  at  time 

specified  or  within  reason- 
able time  —  Reasonable  de- 
lay. 

715.  Failure  to  deliver  and  misde- 

liver. 

II.  Actions  Against  Carriers  of 

Passengers. 

716.  Survival  of  actions  for  per- 

sonal injuries. 

717.  When  the  injury  does  not  re- 

sult in  death. 

the  pleadings. 

718.  Based  upon  what. 

719.  The  answer  or  plea  of  the  de- 

fendant. 

the  evidence. 

720.  What  must  be  proven. 

721.  Presumption  of  negligence. 

722.  Contributory  negligence. 

damages. 

723.  General  rules  applicable. 

724.  Proximate  or  remote  conse- 

quences. 

725.  Actual,  exemplary,   punitive 

or  vindictive  damages. 


709 


§§  690,  691.]  CARRIERS    OF   PASSENGERS.  [PART    VI. 

Actions  against  common  carriers,  for  the  purpose  of  our  dis- 
cussion, will  be  divided  into  (1)  actions  against  the  common 
carriers  of  goods,  and  (2)  against  carriers  of  passengers. 

I. 

Actions  Against  Common  Carriers  of  Goods. 

§  690.  The  basis  of  the  actions. — ^^  These  actions  are  based 
upon  either  breach  of  duty  —  that  duty  which  the  carrier  owes 
to  the  public  as  a  quasi-Tpnhlic  servant,  as  well  as  the  duty  he 
owes  to  the  owner  of  the  goods  or  the  shipper,  and  are  there- 
fore actions  ex  delicto;  or  upon  the  contract  of  affreightments 
either  express  or  implied,  and  are  therefore  actions  ex  contractu. 

§  691.  As  to  what  actions  will  lie. —  At  an  early  period  in 
the  common  law,  actions  against  common  carriers  were  based 
almost  entirely  upon  a  breach  of  their  duty  to  the  public,  and 
were  therefore  actions  ex  delicto.,  or  actions  in  tort.  The  theory 
upon  which  this  rested  was  that  there  was  a  public  duty  im- 
posed upon  carriers  that  was  greater  and  of  more  impor- 
tance than  any  private  contract  with  their  customers,  and  a 
breach  of  that  duty  was  more  grave  than  the  breach  of  a  pri- 
vate contract  and  sounded  in  tort,  and  could  only  be  answered 
for  in  an  action  ex  delicto.  In  Bretherton  v.  Wood  ^  we  have 
an  expression  from  the  English  court  which  defines  the  early 
common-law  rules  governing  actions  against  carriers.  The 
court  say:  "  This  action  is  on  the  case  against  a  common  car- 
rier, upon  whom  a  duty  is  imposed  by  the  custom  of  the  realm, 
or,  in  other  words,  by  the  common  law,  to  carry  and  convey 
their  goods  or  express  safely  and  securely  so  that  by  their  neg- 
ligence or  default  no  injury  or  damage  happen.  A  breach  of 
this  duty  is  a  breach  of  the  laAV,  and  for  this  breach  an  action 
lies,  founded  on  the  common  law,  which  action  wants  not  the 
aid  of  a  contract  to  support  it."  But  the  early  English  opinion 
that  seemed  at  least  to  hold  to  a  strong  preference  for  the  action 
on  the  case  instead  of  the  action  of  assumpsit  has  long  since 
been  abandoned,  and  the  action  of  assumpsit  upon  the  contract, 
express  or  implied,  to  safely  carry  and  deliver  the  goods,  has 
come  to  be  more  generally  used. 

1  3  Brod.  &  Bing.(Eng.)  54;  Coggs  v.  Bernard,  2  Ld.  Rayu^  909;  Smith  v. 
Soward,  2  Pa.  St.  342. 

710 


CH.  VI.]  ACTIONS    AGAINST   CAREIEES    OF    GOODS.       [§§  692,  693. 

It  is  said  that  the  departure  from  the  practice  established  in 
England  was  first  settled  in  the  case  of  Dale  v.  Hall}  where 
it  was  held  that  "  the  permission  to  carry  safely  need  not  be 
proved;  the  law  raises  it.  The  breach  is  very  right  that  he 
did  not  deliver  them  safely,  but  so  negligently  kept  them  that 
they  were  spoiled."  In  Smith  v.  Seward"'  t\ie,  court  say :  "  It  was 
originally  the  practice  to  declare  against  the  carrier  only  on 
the  custom  of  the  realm;  but  it  has  long  been  established  that 
the  plaintiff  may  declare  in  case  or  assumpsit,  at  his  election; 
and  it  is  usual  to  declare  in  the  latter." 

The  right  of  action  against  the  carrier  may  now  be  either 
in  tort  for  a  breach  of  his  public  duty,  or  it  may  be  in  assump- 
sit for  a  breach  of  the  contract  of  carriage;  either  of  these  ac- 
tions may  be  brought  by  the  plaintiff,  as  he  may  choose.  In 
Express  Co.  v.  Me  Veigh  ^  it  was  said :  "  When  there  is  a  public 
employment,  from  which  arises  a  common-law  duty,  an  action 
may  be  brought  in  tort,  although  the  breach  of  duty  assigned 
is  the  doing  or  not  doing  something  contrary  to  an  agreement 
made  in  the  course  of  such  employment,  by  the  party  on  whom 
such  general  duty  is  imposed." 

§  692.  Even  if  there  is  a  special  contract. —  And  if 

there  is  a  special  contract  to  carry,  the  option  still  remains  to 
the  plaintiff,  and  he  may  bring  his  action  either  ex  delicto  or  ex 
contractu,  whichever  he  chooses,  for  a  breach  of  duty  to  carry 
and  safely  deliver,  or  upon  the  special  contract.* 

§693.  The  advantages  of  the  action  ex  delicto, —  There 
are  no  doubt  some  advantages  to  the  plaintiff  in  bringing  the 
action  ex  delicto.  As,  for  example,  where  there  is  uncertainty 
as  to  the  party  defendants,  the  action  ex  delicto  will  not  be  de- 
feated for  non-joinder  or  misjoinder  of  defendants;  the  plaintiff 
can  have  his  judgment  against  all  of  them,  or  any  of  them 
against  whom  he  has  been  able  to  make  a  case  by  his  proofs. 
Nor  is  it  necessary  to  set  out  so  fully  and  particularly  the  facts 
and  circumstances  in  the  declaration  as  it  would  be  if  he  de- 
clared upon  a  contract.*  And  so  in  actions  for  delay  in  trans- 
})orting  the  goods,  for  negligence  or  misfeasance  in  delivering 

1  1  Wills.  281.  *  Nicoll  v.  Railway  Co.,  89  Ga.  260; 

23  Pa.  St.  343.  Oxley  v.  Railway  Co.,  65  Mo.  630. 

3  20  Grat.  (Va.)  264.  sWeecl  v.  Railway  Co.,  19  Wend. 

534 
711 


§§  694:,  695.]  CARRIERS    OF    PASSENGERS.  [PART    YI. 

them  after  transportation,  or  in  an  action  to  recover  excessive 
charges,  the  plaintiff  may  bring  the  action  in  tort,  ex  delicto^ 
or  an  action  upon  the  contract  implied  or  expressed;  as,  for 
example,  for  delay  in  transportation,  the  action  may  be  upon 
the  implied  contract  to  safely,  and  within  a  reasonable  time, 
transport  and  deliver  the  goods;  or  it  may  be  upon  a  breach 
of  duty  upon  the  part  of  the  carrier  by  reason  of  his  failure  to 
do  so,  which  is  considered,  for  the  purpose  of  such  action,  a 
public  duty  of  the  carrier.  As  we  have  seen,  it  is  the  duty  of 
the  carrier  to  deliver  the  goods  to  the  consignee,  or  to  his 
order,  and  for  failure  to  do  so,  or  for  a  misdelivery,  he  would 
be  liable.  And  in  such  case  the  action  may  be  upon  the  im- 
plied contract,  or  it  may  be  for  a  breach  of  duty  upon  the  part 
of  the  carrier.  The  carrier  is  only  entitled  to  reasonable  com- 
pensation; and  this  is  so  even  though  defendant  in  carrying 
the  goods  is  governed  by  the  common-law  rule  only,  because 
demanding  and  receiving  excessive  charges-,  and  especially 
when  demanded  before  he  will  consent  to  carry  the  goods,  by 
the  common  law^  would  render  him  guilty  of  a  breach  of  cfuty 
and  liable  in  an  action  ex  delicto^  or,  as  said,  at  the  option  of 
the  plaintiff,  to  an  action  ex  contractu  as  for  money  had  and 
received.^ 

§  694.  For  refusal  to  carry  the  goods. —  While  it  is 

the  duty  of  a  common  carrier  to  receive  and  carry  the  goods 
of  all  who  present  them  for  carriage,  subject  to  the  exceptions 
heretofore  noted,  there  is  no  implied  contract  to  receive  them, 
and  a  refusal  to  do  so  would  be  a  breach  of  duty  on  the  part 
of  the  carrier,  and  the  action  for  such  refusal  would  of  neces- 
sity be  an  action  ex  delicto;  but  if  there  had  been  a  special 
contract  to  receive  and  carry  the  goods,  and  the  carrier  re- 
fused to  carry  them,  then  we  need  not  say  that  an  action  would 
lie  for  such  carriage  ex  contractu  for  failure  to  comply  with  the 
contract. 

§  695.  The  parties. —  The  general  rules  applicable  in  deter- 
mining who  shall  be  parties  to  actions  apply  in  actions  against 
common  carriers  of  goods,  and  no  different  or  other  rules  ap- 
ply. The  plamtiff  must  be  one  in  whom  is  vested  the  legal 
right  to  compensation  or  damages;  the  real  party  in  interest 
whose  rights  have  been  violated,  or  whose  property  has  been 

1  Daws  V.  Peck.  8  T.  R.  330. 
713 


€11.  VI.]  ACTIONS   AGAINST   CAKEIEKS    OF   GOODS.  [§  696. 

lost  or  injured,  or  who  is  entitled  to  the  performance  of  the 
contract  or  duty  in  question  in  the  particular  case,  or  the  as- 
signee of  such  a  party  or  his  legal  representatives.  A  leading 
case  upon  this  subject,  which  ^as  been  followed  and  cited  very 
generally,  is  the  early  English  case  of  Daws  v.  Peck,  where  the . 
subject  was  very  generally  discussed  by  Lord  Kenyon.  In 
rendering  the  opinion  he  said:  "  I  cannot  subscribe  to  one  part 
of  the  argument  urged  on  behalf  of  the  plaintiff,  namely,  that 
the  right  of  property  on  which  this  action  is  founded  is  to  fluct- 
uate according  to  the  choice  of  the  consignor  or  consignee,  and 
that  consequently  either  of  them  may  at  his  pleasure  maintain 
an  action  against  the  carrier  for  the  non-delivery  of  the  goods. 
In  ray  opinion  the  legal  rights  of  the  parties  must  be  certain 
and  depend  upon  the  contract  between  them,  and  cannot  fluct- 
uate according  to  the  inclination  of  either.  This  question  must 
be  governed  by  the  consideration  in  whom  the  legal  right  was 
vested;  for  he  is  the  person  who  has  sustained  the  loss,  if  any, 
by  the  negligence  of  the  carrier,  and  whoever  has  sustained 
the  loss  is  the  proper  party  to  call  for  compensation  from  the 
person  by  whom  he  has  been  injured." 

§  696.  The  consignee. —  The  legal  presumption  is  that 

the  consignee  is  the  owner  of  the  goods,  and  for  their  loss  or 
injury  is  entitled  to  damages;  but  this  presumption  may  be 
overcome  by  proof  of  the  real  facts  as  to  ownership.  The 
question  that  determines  who  is  the  proper  part}'"  plaintiff  is, 
then:  Who  is  the  owner  of  the  goods,  or  upon  whom  is  the 
risk  of  the  shipment;  who  is  the  injured  party  in  case  of  loss 
or  damage  to  the  property  ?  Such  an  owner  or  such  a  party 
can  sustain  the  action,  and  if  the  facts  show  that  that  one  is 
not  the  consignee,  then  some  other  one  who  sustained  such  like 
relations  to  the  goods  should  bring  the  action.  The  person 
who  makes  the  contract  to  ship  the  goods  may  not  always  be 
the  owner  or  the  party  in  interest;  his  relation  may  be  such 
that  he  would  not  suffer  loss  or  damage  if  the  property  was  dis- 
stroyed  or  injured,  but  if  he  does  occupy  such  a  relation,  then  he 
would  be  properly  a  party  plaintiff.  This  question  was  fully 
treated  in  a  leading  case  in  Massachusetts,^  where  the  court 

iBIanrliard  et  al.  v.  Page  et  al.,  8  Gray  (Mass.),  281;  Congor  v.  Railway- 
Co.,  17  Wis.  477. 

713 


§  690.]  CARRIERS    OF    PASSENGERS.  [PART    VI. 

discussed  the  leading  cases  upon  the  subject.  The  court  say: 
"  There  is  no  doubt  that  the  party  who  was  owner  at  the  time, 
or  becomes  owner  of  the  goods  afterwards,  b}^  assignment  of 
the  shipper  or  otherwise,  and  who  was  consignee,  indorsee  of 
the  bill  of  lading,  or  lawful  holder  of  a  bill  of  lading  in  blank, 
and  who  really  sustains  the  damage,  may  maintain  an  action 
against  the  ship-owner,  not  because  he  has  any  contract  with 
him  for  the  carriage,  but  because  the  ship-owner  has  the  goods- 
lawfully  in  his  possession;  it  has  become  his  duty  to  carry 
them  safely  and  deliver  them  to  the  consignee,  subject  only  to 
a  lien  for  his  freight;  and,  if  the  consignee  is  ready  to  dis- 
charge that  lien  by  a  payment  or  tender  of  that  freight,  the 
refusal  of  the  carrier  to  deliver  the  goods  to  such  consignee  is. 
a  breach  of  duty,  and  a  wrong  done  him,  for  which  an  ac- 
tion, either  in  tort  for  the  conversion,  or  in  assumpsit  upon  the 
implied  promise  to  perform  such  duty,  may  be  maintained." 
And  in  Scamrnon  v.  Wells,  Fargo  (&  Co}  it  was  held  that  "  a 
carrier  has  the  rio^ht  to  assume  that  the  consig'nee  is  the  owner 
of  goods  consigned,  and  to  settle  with  him  therefor,  if  he  has 
been  robbed  thereof,  in  the  absence  of  notice  that  the  con- 
signor was  the  owner  of  the  property."  The  court  of  Penn- 
sylvania^ held  that  the  rule,  that  a  consignee  of  goods  deliv- 
ered to  a  common  carrier  for  transportation  might  sustain  an 
action  for  failure  to  transport  or  deliver  them,  would  hardly 
admit  of  a  doubt,  and  say :  "  The  doubt  has  rather  been  whether 
the  action  could  be  maintained  in  the  name  of  the  consignor- 
And  though  it  has  been  ruled  that  it  may  be  when  the  prop- 
erty in  the  goods  is  proved  to  have  remained  in  the  consignor,. 
yet  this  is  not  at  all  in  conflict  with  the  right  of  the  consignee 
to  sue  when  there  is  no  such  proof  of  ownership." 

The  New  York  court  has  held  that  "  the  presumption  of  law 
is  that  the  consignee  is  the  owner  of  the  goods  in  the  absence 
of  any  evidence  on  the  subject,  and  is  the  proper  party  to  sue 
for  their  injury  or  loss." '  And  in  Illinois,  in  the  case  of  Mer- 
diants^  etc.  Co.  v.  S7nith,^  it  was  held  that  "  when  goods  are  con- 

1 84  Cal.  311.  322:  Everett  v.  Saltus,  15  Wend.  474; 

-  Avbuckle  V.  Thompson,  87  Pa.  St.  Ang.  on  Cai*.  497,  and  cases  cited; 

170.  Thompson  v.  Fargo.  49  N.  Y.  188,  and 

3  Krulder  v.  Ellison  et  al.,  47  N.  Y.  see  cases  cited  in  brief  and  opinion. 
36,  citing  Sweet  v.  Barney,  23  N.  J.        4  76  111.  542;  Fa.  Co.  v.  Holderman,. 

235;  Price  v.  Powell,  3  Comst.  (N.  Y.)  69  Ind.  18. 

714 


CII.  VI.]  ACTIONS    AGAINST    CARRIERS    OF    GOODS.       [§§  697,  G9S. 

signed  without  reservation  on  the  part  of  the  consignor,  the 
legal  presumption  is  that  the  consignee  is  the  owner,  and  in 
case  of  a  loss  an  action  against  the  carrier  is  properly  brought 
by  the  consignee."  The  legab  presumption  is,  and  it  may  be 
said  that  this  is  the  conclusion  of  the  authorities  generallv,  that 
upon  the  delivery  of  the  goods  to  a  common  carrier  without 
any  reservation  or  notice  to  the  contrary,  the  title  to  the  goods 
vests  in  the  consignee,  and  the  carrier  has  a  right  to  rely  upon 
this  presumption.  And  so  it  was  held  that  a  carrier  had  a 
right  to  settle  with  the  consignee  in  a  case  where  the  property 
was  stolen  or  destroyed,  and  that  the  consignee  could  sustain 
an  action  where  property  was  lost  by  the  carrier.^ 

§  697.  One  having  a  special  property  in  the  goods. — 

The  governing  principle  as  to  who  can  sustain  the  action  is 
based  upon  an  interest  in  the  property.  That  interest  may  be 
ownership,  or  it  may  be  a  special  interest.  As,  for  example,  an 
undisclosed  agent  may  sustain  the  action,  or  a  factor,  a  broker, 
a  warehouseman,  or  person  who  has  a  special  property  in  the 
goods,  and  a  recovery  by  such  an  one  will  be  a  bar  to  a  recov- 
ery by  the  real  owner.'-'  But  the  real  owner  because  of  this 
would  not  be  deprived  of  the  right  to  bring  an  action  for  dam- 
age or  injury  to  the  goods  while  in  the  hands  of  such  an 
agent.^ 

§  698.  The  consignor. —  Where  the  goods  are  deliv- 
ered to  the  carrier  by  the  consignor,  who  has  taken  therefor  a 
bill  of  lading  or  a  contract  for  shipment,  an  action  can  be  sus- 
tained by  such  consignor  by  reason  of  the  contract,  and  it  has 
been  held  that  where  there  is  no  express  contract  he  can  sus- 
tain an  action  upon  the  implied  contract  for  shipment.  This 
question  was  before  the  court  in  the  case  of  Daws  v.  Peok^  and 
in  Blanohard  v.  Page^  and  so  decided.  In  Finn  v.  Railway  Co^ 
it  was  held  that  "a  consignor  who  delivered  goods  to  a  car- 
rier can  maintain  an  action  of  contract  against  him  for  their 

1  Dyer  v.  Railway  Co.,  51  Minn.  345,  343.     See  Blum  v.  The  Caddo,  Fed. 

53  N.  W.  714,  and  see  cases  cited  in  Cas.  No.  1,573,  1  Woods,  64;  Meigs  v. 

opinion  of  the  court.  Hayden,  86  Fed.  926. 

■^  Hutch,  on  Car.,  sec.  721,  and  see  <  ^  t.  R.  330. 

cases  cited;  Denver,  etc.  R.  Co.  v.  *  8  Gray,  281. 

Frame,  6  Colo.  383.  « 112  Mass.   524.      See  authorities 

^N.  J.   etc.  Co.  V.  Bank,  6  How.  cited  in  the  opinion. 
(U.  S.)  344;  Green  v.  Clarke,  12  N.  Y. 

715 


§  C9S.]  CARRIERS    OF    PASSENGERS.  [pART    VI. 

loss  if  there  is  no  relation  between  the  carrier  and  the  con- 
signee other  than  that  which  results  from  the  carrier's  posses- 
sion of  the  goods,  and  in  such  action  can  recover  the  full 
value  of  the  property,  although  it  be  the  property  of  the  con- 
signee, if  no  action  against  the  carrier  has  been  commenced  by 
the  consignee,  and  will  hold  the  proceeds  in  trust  for  the  con- 
signee's indemnity."  The  court  in  discussing  the  question  say : 
"The  liabilities  of  a  common  carrier  of  goods  are  various,  and, 
when  not  controlled  by  express  contract,  they  spring  from  his 
legal  obligations,  according  to  the  relations  he  may  sustain  to 
the  parties,  either  as  employers,  or  as  owners  of  the  property. 
Prima  facie  his  contract  of  service  is  with  the  part}^  from 
whom,  directly  or  indirectly,  he  receives  the  goods  for  car- 
riage; that  is,  with  the  consignor.  His  obligations  to  carry 
safely,  and  deliver  to  the  consignees,  subjects  him  to  liabilities 
for  any  failure  therein,  which  may  be  enforced  by  the  consign- 
ees or  by  the  real  owners  of  the  property,  by  appropriate  ac- 
tions in  their  own  names,  independently  of  the  original  con- 
tract by  which  the  service  was  undertaken.  Such  remedies 
are  not  exclusive  of  the  right  of  the  party  sending  the  goods 
to  have  his  action  upon  the  contract  implied  from  the  delivery 
and  receipt  of  them  for  carriage.  .  .  .  When  carrying 
goods  from  seller  to  purchaser,  if  there  is  nothing  in  the  rela- 
tions of  the  several  parties  excej)t  what  arises  from  the  fact 
that  the  seller  commits  the  goods  to  the  carrier  as  the  ordinary 
and  convenient  mode  of  transmission  and  delivery,  in  execu- 
tion of  the  order  or  agreement  of  sale,  the.  employment  is  bv 
the  seller,  the  contract  of  service  is  with  him,  and  actions 
based  upon  that  contract  may,  if  they  must  not  necessarily,  be 
in  the  name  of  the  consignor.  If,  however,  the  purchaser 
designates  the  carrier,  making  him  his  agent  to  receive  and 
transmit  the  goods,  or  if  the  sale  is  complete  before  delivery 
to  the  carrier,  and  the  seller  is  made  the  agent  of  the  pur- 
chaser in  respect  to  the  forwarding  of  them,  a  different  impli- 
cation would  arise,  and  the  contract  of  service  might  be  held 
to  be  with  the  purchaser.  This  distinction,  we  think,  must 
determine  whether  the  right  of  action  upon  the  contract  of 
service,  implied  from  the  delivery  and  receipt  of  goods  for  car- 
riage, is  in  the  consignor  or  in  tlie  consignee." 

The  doctrine  that  the  consignor  may  bring  an  action  founded 

716 


CH.  VI.]  ACTIONS    AGAINST    CARRIERS    OF    GOODS,       [§§  699,  700. 

upon  the  contract  of  affreightment  has  been  carried  to  the  ex- 
tent that  such  an  action  may  be  sustained  even  though  the 
plaintiff  has  no  interest  in  the  goods,^  the  action  resting  entirely 
upon  his  contract  with  the  carrier,  and  therefore  must  be  an 
action  of  nssumpsit,  and  that  in  such  an  action  he  may  recover 
the  full  damages  resulting  from  loss  or  injur}^  to  the  property, 
but  that  such  recovery  is  in  trust  and  for  the  benefit  of  the 
owner  of  the  goods.^ 

§  699.  The  def eudant. —  It  goes  without  saying  that 

the  party  defendant  must  be  the  carrier  who  has  undertaken 
the  transportation  of  the  goods,  either  upon  an  express  or  im- 
plied contract  of  shipment,  and  not  his  servants  or  agents. 
If  either  the  servant  or  agent  of  a  carrier  should  undertake  the 
transportation  of  goods,  that  is  without  the  scope  of  the  busi- 
ness of  the  carrier,  and  without  any  authority  from  the  carrier, 
it  has  been  held  in  such  case  that  the  agent  or  servant  would 
be  liable.^  An  exception,  however,  has  been  recognized  in  the 
case  of  a  master  of  a  ship,  who  it  has  been  held  may  be  re- 
garded as  a  common  carrier,  and  liable  with  the  owner  of  the 
vessel  for  safe  transportation  of  the  property.* 

THE    PLEADINGS. 

§  700.  Pleadings  follow  general  rules. —  The  pleadings  in 
actions  against  carriers  may  be  said  to  follow  the  general  rules 
upon  this  subject.  As  we  have  seen,  the  action  may  be  either 
upon  the  contract  in  an  action  ex  contraetu  or  for  a  breach  of 
duty  in  an  action  ex  delicto.  If  the  action  is  upon  the  contract, 
the  declaration  or  petition,  as  the  case  may  be,  should  set  out 
a  contract,  alleging  the  breach  and  the  damages  as  is  usual  in 
such  cases.     If  the  action  is  ex  delicto^  the  relation  of  the  par- 

1  Hutch,  on  Car.,  sec.  734,  and  cases  owners  of  vessels,  who  undertake  to 
cited;  American  Rooting  Co.  V.  Mem-  carry  goods  for  hire,  are  liable  as 
phis,  etc.  Co.,  5  Ohio  N.  P.  146;  common  carriers,  whether  the  trans- 
Thompson  V.  Railroad  Co.,  11  Tex.  portation  be  from  port  to  port  within 
App.  145.  the  state,  or  beyond  the  sea,  at  home 

2  Hutch,  on  Car.,  sec.  730,  and  cases  or  abroad;  and  they  are  answerable, 
cited.  as  well  by  the  marine  law  as  by  the 

^Elkins  V.  Railway  Co.,  23  N.  H.  common  law  of  England,  for  all 
275;  Citizens' Bank  V.  Steamboat  Co.,  losses,  not  arising  from  inevitable 
3  Story,  17.  accidents,  or  such  as  could  not  be 

■*  Elliott    V.    Russell   &   Lewis,   10     foreseen  or  prevented." 
Johns.    1,   held  that    "masters  and 

717 


§§  701-704.]  CAKEIEKS    OF    PASSENGERS.  [PAET    TI. 

ties,  the  duty  of  the  carrier,  his  failure  to  perform  that  duty, 
and  the  resulting  damages  should  be  clearly  and  logically  set 
forth. 

§  701.  Defenses. —  And  so  it  may  be  said  of  the  de- 
fenses, that  there  is  nothing  unusual  in  the  pleadings  on  the 
part  of  the  defendant.  It  is  only  necessary  to  know  what  would 
constitute  a  defense,  and  when  and  how  it  can  be  pleaded. 
There  are  matters  of  special  defense  which  must  be  set  forth 
specially,  for  the  plaintiff  is  entitled  to  notice  of  such  defenses; 
but  all  this  is  regulated  by  the  rules  applicable  to  pleading,  and 
there  are  no  rules  peculiar  to  actions  against  common  carriers. 

THE    PROOFS. 

§  702.  What  proofs  should  be  adduced. —  We  may  say  of 

the  rules  governino;'  the  evidence  in  such  actions  as  we  have 
said  of  the  pleadings,  that  there  are  no  rules  peculiar  to 
actions  against  carriers.  The  material  allegations  of  the  peti- 
tion or  declaration  must  be  proved ;  in  other  words,  the  case 
alleged  must  be  substantiated.  Whether  the  action  be  ex  con- 
tractu or  ex  delicto  it  will  be  necessary  to  prove  a  delivery  of 
the  goods  by  the  shipper  to  the  carrier,  and  an  undertaking  on 
his  part  to  carry  them  as  alleged  in  the  declaration  or  petition, 
a  failure  to  perform  such  undertaking  on  his  part,  and  the  loss 
or  injury  by  reason  of  such  failure  by  way  of  damages. 

§  703.  ^'egligence. —  The  loss  or  injury  must  be  shown  to 
be  the  result  of  the  neo^lifrence  alleged,  and  in  such  cases  the 
owner  or  shipper  is  entitled  to  the  benefit  of  the  presumptions 
of  negligence  that  usually  obtain  in  such  cases;  as,  for  ex- 
ample, where  it  is  shown  that  the  goods  were  delivered  for 
shipment  and  the  carrier  undertook  to  transport  them,  that 
they  have  not  been  received  after  a  reasonable  time  and  are 
not  accounted  for;  or  if  the  goods  are  received  in  a  damaged 
condition,  having  been  delivered  to  the  carrier  in  good  condi- 
tion, the  presumption  is  that  the  loss  or  injury  resulted  from 
the  negligence  of  the  carrier. 

§  704.  Defendant's  proofs. —  The  carrier  by  way  of  defense 
may  show  that  the  loss  or  injury  was  caused  by  the  act  of  God 
or  the  public  enemy,  or  any  of  the  causes  which  we  have  seen 
will  excuse  him  from  liability,  and  in  such  case  it  will  be  pre- 
sumed that  his  negligence  or  acts  did  not  contribute  to  the  loss, 

718 


•CH.   VI.]  ACTIONS    AGAINST    CARKIEKS    OF   GOODS.        [§§  705,   706. 

and  the  burden  of  showing  that  the  damage  was  not  the  result 
alone  of  one  of  the  causes  which  excuses  the  carrier,  but  that  the 
carrier's  acts  contributed  to  the  result,  is  upon  the  plaintiff.  In 
other  words,  the  presumption,  in  the  absence  of  proof,  in  such 
cases,  is  that  the  carrier  performed  his  duty;  that  the  loss  or 
injury  was  occasioned  by  an  act  of  God,  or  was  the  result  of 
such  acts  as  excuse  his  liabilit}^  without  his  negligence,  and 
the  burden  of  showing  that  the  loss  was  not  alone  from  such 
•causes,  but  that  the  negligence  of  the  carrier  contributed  to 
the  loss,  is  upon  the  plaintiff.  Several  of  the  states  have, 
however,  held  the  rule  to  be  otherwise:  that  the  carrier  must 
not  only  show  that  the  damage  resulted  from  the  act  of  God, 
or  from  some  of  the  causes  which  excuse  him,  but  must  fur- 
ther show  that  his  acts  in  no  way  contributed  to  the  loss. 
This,  however,  cannot  be  said  to  be  the  weight  of  authority.^ 

DAMAGES. 

§  705.  Of  what  tliey  generally  consist. —  Damages  are  usu- 
ally but  compensation  for  the  injury  or  loss  to  the  plaintiff 
resulting  from  a  breach  of  the  contract  of  shipment,  or  from 
failure  to  perform  a  duty  which  the  carrier  is  legally  bound  to 
perform  in  the  matter  of  the  shipment  of  the  goods.  They  con- 
isist  of  the  amount  of  mone}'"  that  will  compensate  the  plaintiff 
for  his  loss,  and  this  amount  must  be  shown  by  the  circum- 
-stances  in  each  particular  case.  As,  for  example,  in  a  case 
Avhere  the  carrier  refuses  to  receive  and  transport  the  goods, 
for  loss  or  injury  to  the  goods  while  in  transit,  for  failure  to 
properly  deliver  the  goods  to  the  consignee  at  the  place  of  de- 
livery, for  delivery  of  the  goods  to  the  wrong  person,  for  de- 
lay in  the  shipment,  and  such  like  obligations  as  rest  upon  the 
carrier.  From  the  mere  statement  of  these  obligations  it  will 
be  seen  that  the  measure  of  damages  is  very  different  in  the 
■different  classes  mentioned. 

§  706.  Actual,  exemplary,  punitive  or  vindictive  dam- 
ages.—  Damages  are  usually  said  to  be  either  actual,  exemplary, 
punitive  or  vindictive,  but  there  is  some  diversity  in  the  opin- 
ions of  the  courts  upon  the  question  of  the  kind  of  damages 
that  may  be  recovered  against  carriers.  Some  very  strong- 
reasons  are  advanced  by  a  large  number  of  the  supreme  courts 

1  See  Hutch,  on  Car.,  sees.  665,  667,  and  notes. 
719 


§   706.]  CAERIEKS    OF    PASSENGEES.  [PART    VI. 

of  the  states  and  of  the  United  States,  urging  that  exemplar}', 
punitive,  and  even  vindictive  damages  may  be  recovered  in 
cases  where  the  proof  shows  a  wanton  or  malicious  invasion  of 
the  plaintiff's  rights,  or  where  there  has  been  oppression  or  vin- 
dictiveness  on  the  part  of  the  defendant,  while  others  of  the 
courts  hold  that  only  actual  or  compensatory  damages  can  be 
recovered,  yielding,  however,  this  much:  that  in  case  of  wan- 
tonness or  maliciousness,  or  oppressive  and  vindictive  action  on 
the  part  of  the  defendant  carrier,  the  compensation  should  be 
liberal  and  sufficient  to  cover  the  actual  injury  because  of  such 
wantonness,  maliciousness  or  vindictiveness.  The  supreme  court 
of  Kentucky  have  held  that  juries  might  give  what  is  denom- 
inated "  smart  money "  in  certain  aggravated  cases  of  tort. 
The  court  say :  "  If  trespassers  were  bound  to  pay  in  damages  no 
more  than  the  exact  value  of  the  property  forcibly  taken  and  con- 
verted by  them,  there  would  be  no  motive  created  by  the  oper- 
ation of  law  to  induce  them  to  desist  and  abstain  from  invad- 
ing the  rights  of  others.  To  furnish  such  a  motive  'smart 
money  '  is  allowed."  ^  The  Illinois  court  has  held  to  this  doc- 
trine in  cases  where  the  acts  are  not  indictable,  and  "  where 
the  trespass  is  wanton,  wilful  or  malicious,  or  accompanied 
with  such  acts  of  indignity  as  show  reckless  disregard  of  the 
rights  of  others,"  basing  their  opinion  upon  the  ground  of  pun- 
ishment for  the  wrong  and  to  deter  others.-  Mr.  Justice  Grier, 
for  the  supreme  court  of  the  United  States,  in  Day  v.  Wood- 
worth,^  said :  "  It  is  a  well  established  principle  of  the  common 
law,  that  in  actions  of  trespass  and  all  actions  on  the  case  for 
torts,  a  jury  may  inflict  what  are  caUed  exemplary,  punitive,  or 
vindictive  damages  upon  a  defendant,  having  in  view  the  enor- 
mity of  his  offense  rather  than  the  measure  of  compensation 
to  the  plaintiff.  We  are  aware  that  the  propriety  of  this  doc- 
trine has  been  questioned  by  some  writers;  but  if  repeated  judi- 
cial decisions  for  more  than  a  century  are  to  be  received  as  the 
best  exposition  of  what  the  law  is,  the  question  will  not  admit 
of  argument.  By  the  common  as  well  as  by  statute  law,  men 
are  often  punished  for  aggravated  misconduct  or  lawless  acts 
by  means  of  a  civil  action,  and  the  damages  inflicted  by  way 
of  penalty  or  punishment  given  to  the  party  injured.     In  many 

1  Tyson  v.  Ewing,  3  J.  J.  Marsh.        -  Cutler  v.  Smith,  57  III.  252. 
(Ky.)186.  3  13  How.  363-371. 

720 


CH.  TI.]  ACTIONS    AGAINST    CARRIERS    OF    GOODS.  [§  TOG. 

civil  actions,  such  as  libel,  slander,  seduction,  etc.,  the  wrong 
done  to  the  plaintiff  is  incapable  of  being  measured  by  a  money 
standard;  and  the  damages  assessed  depend  on  the  circum- 
stances, showing  the  degree  of' moral  turpitude  or  atrocit}^  of 
the  defendant's  conduct,  and  may  properly  be  termed  exemplary 
or  vindictive  rather  than  compensatory.  In  actions  of  trespass, 
where  the  injury  has  been  wanton  and  malicious,  or  gross  and 
outrageous,  courts  permit  juries  to  add  to  the  measured  com- 
pensation of  the  plaintiff  whiclihe  w^ould  have  been  entitled  to 
recover  had  the  injury  been  inflicted  without  design  or  inten- 
tion, something  further  by  way  of  punishment  or  example, 
which  has  sometimes  been  called  'smart  money.'  This  has 
been  always  left  to  the  discretion  of  the  jury,  as  the  degree  of 
punishment  to  be  thus  inflicted  must  depend  on  the  peculiar 
circumstances  of  each  case." 

Mr.  Justice  Davis,  in  Milwaukee  v.  Arms^  discussing  this 
question,  used  this  language:  "It  is  undoubtedly  true  that  the 
allowance  of  anything  more  than  an  adequate  pecuniary  in- 
demnity for  a  wrong  suffered  is  a  great  departure  from  the 
principle  on  which  damages  in  civil  suits  are  awarded.  But 
although,  as  a  general  rule,  the  plaintiff  recovers  merely  such 
indemnity,  yet  the  doctrine  is  too  well  settled  now  to  be  shaken, 
that  exemplary  damages  may  in  certain  cases  be  assessed.  As 
the  question  of  intention  is  always  material  in  an  action  of 
tort,  and  as  the  circumstances  which  characterize  the  transac- 
tion are,  therefore,  proper  to  be  weighed  by  the  jury  in  fixing 
the  compensation  of  the  injured  party,  it  may  well  be  consid- 
ered whether  the  doctrine  of  exemplary  damages  cannot  be 
reconciled  with  the  idea  that  compensation  alone  is  the  true 
measure  of  redress.  But  jurists  have  chosen  to  place  this  doc- 
trine on  the  ground,  not  that  the  sufferer  is  to  be  recompensed, 
but  that  the  offender  is  to  be  punished;  and,  although  some 
text-writers  and  courts  have  questioned  its  soundness,  it  has 
been  accepted  as  the  general  rule  in  England  and  in  most  of 
the  states  of  this  country.  ...  In  ascertaining  its  extent, 
the  jury  may  consider  all  the  facts  which  relate  to  the  wrong- 
ful act  of  the  defendant,  and  its  consequences  to  the  plaintiff; 
but  they  are  not  at  liberty  to  go  farther  unless  it  was  done 

191   U.  S.  (1  Otto),  489-493;    Philadelphia,  etc.  Ry.   Co.  v.  Quigley,  21 
How.  213. 

46  721 


§  707.]  CAERIEES    OF    PASSENGERS.  [PART   VI. 

wilfully,  or  was  the  result  of  that  reckless  indifference  to  the 
rights  of  others  which  is  equivalent  to  an  intentional  violation 
of  them.  In  that  case  the  jury  are  authorized,  for  the  sake  of 
public  example,  to  give  such  additional  damages  as  the  cir- 
cumstances require.  The  tort  is  aggravated  by  the  evil  mo- 
tive, and  on  this  rests  the  rule  of  exemplary  damages."" 

While  this  doctrine  seems  to  be  held  with  more  or  less 
emphasis  in  very  many  states  of  the  Union,  some  of  the  courts 
have,  however,  as  we  have  said,  modified  the  ruling  by  hold- 
ing that  a  very  liberal  allowance  of  compensatory  damages 
may  be  allowed  to  the  injured  plaintiff. 

§  707.  Exemplary  damages  confined  to  liberal  compensa- 
tory or  actual  damages. —  Ainong  the  authorities  who  hold 
to  the  doctrine  that  a  liberal  allowance  of  compensatory  dam- 
ages to  the  injured  plaintiff  should  be  allowed  in  cases  where 
exemplary  damages  would  appear  to  be  proper,  is  to  be  found 
Professor  Greenleaf,  who  urges  this  to  be  the  correct  doctrine, 
lie  says:  ^  "It  is  frequently  said  that  in  actions  ex  delicto  evi- 
dence is  admissible  in  aD'o:ravation  or  in  miticifation  of  dam- 
ages.  But  this,  it  is  conceived,  means  nothing  more  than  that 
evidence  is  admissible  of  facts  and  circumstances  which  go  in 
aggravation  or  in  mitigation  of  the  injury  itself.  The  circum- 
stances, thus  proved,  ought  to  be  those  only  which  belong  to 
the  act  complained  of.  The  plaintiff  is  not  justly  entitled  to 
receive  compensation  beyond  the  extent  of  his  injury,  nor 
ought  the  defendant  to  pay  to  plaintiff  more  than  the 

plaintiff  is  entitled  to  receive."  .  Jne  of  the  best  considered 
cases  upon  the  subject  of  damages  is  that  of  Fay  v.  Parker? 
In  that  case  Mr.  Justice  Foster  has  considered  every  leading 
American  and  English  case  upon  the  subject  up  to  the  time  of 
the  decision.  His  argument  is  exhaustive  and  his  reasonino: 
very  strong.  In  the  course  of  the  opinion  he  says:  "I  venture 
to  say  that  no  case  will  be  found  in  ancient,  nor  indeed  in 
modern,  reports  in  which  a  judge  explicitly  told  a  jury  that  they 
might,  in  an  action  for  an  assault  and  battery,  give  the  plaintiff 
four  damages,  viz. :  1.  For  loss  of  propert}^,  as  for  injury  to  his 
apparel,  loss  of  labor  and  time,  expenses  of  surgical  assistance, 
nursing,  etc.;    2.  For  bodily  pain;    3.  For  mental  suffering; 

13  GreenL,  sec.  266;  and  see  cases        253  n.  H.  342;  1  Sutherland,  Dam- 
cited,  ages,  730. 

722 


CH.  VI.]  ACTIONS    AGAINST    CARRIERS    OF    GOODS.  [§  707. 

and  4.  For  punishment  of  the  defendant's  crime.  But  a  crit- 
ical examination  of  the  cases  will  show,  as  I  believe,  that  this 
fourth  item  is,  in  fact,  comprehended  in  the  third,  but  has 
grown  into  and  become  a  separate  and  additional  item  by  in- 
considerate, if  not  intemperate  and  angry,  instructions  given 
to  juries  when  the  court  was  too  much  incensed  by"  the  exhibi- 
tion of  wanton  malice,  revenge,  insult  and  oppression  to  weigh 
with  coolness  and  deliberation  the  meaning  of  language  pre- 
viously used  by  other  judges;  instructions  prompted  by  im- 
pulses of  righteous  indignation,  swift  to  administer  supposed 
justice  to  a  guilty  defendant,  but  expressed  with  too  little  cau- 
tion and  without  pausing  to  reflect  that  the  court  was  thus  en- 
couraging the  jury  to  give  the  plaintiff  more  than  he  was 
entitled  to,— to  give  him,  in  fact,  as  damages  the  avails  of  a 
fine  imposed  for  the  vindication  of  the  criminal  law,  and  for 
the  sake  of  public  example." 

Chief  Justice  Gushing,  in  Bixhy  v.  Dtmlajp^  quotes  with  ap- 
proval the  case  of  Fay  v.  Parher.  The  supreme  court  of  Michi- 
gan, while  they  have  recognized  exemplary  damages  and 
allowed  such  damages  to  be  recovered  in  the  redress  of  private 
injuries,  have  taken  occasion  to  say  in  Watson  v.  Watson"^  that 
the  increased  damages  resulting  from  circumstances  of  aggra- 
vation are  sometimes  spoken  of  as  exemplary,  as  in  a  certain 
sense  they  are,  but  in  a  less  misleading  and  more  accurate  sense 
they  are  compensatory.  And  this  judgment  has  been  followed 
in  several  cases  decided  in  th<it  court.  As  in  Scripps  v.  Riley'^ 
it  was  held  that  actual  darr  ges  for  injured  feelings  may  be 
increased  or  aggravated  by  the  defendant's  vindictive  feelings, 
or  the  degree  of  malice,  recklessness,  gross  negligence,  or  care- 
lessness on  his  part.  But  in  Long  v.  Printing  Co}  the  court 
say:  "Damages  for  injury  to  feelings,  shame,  mortification, 
mental  anxiety,  insulted  honor  and  indignation  have  always, 
in  this  state  at  least,  been  regarded  ais  actual  damages  and  not 
as  exemplary,  punitive,  or  vindictive  damages."  In  an  action 
against  carriers  for  the  conversion  of  a  quantity  of  flowers  in- 

•  56  N.  H.  4o6.  damages  cannot  be  allowed  where 

2  53  Mich.  168.  the  damages  are  capable  of  accurate 

3  38  Mich.  10;  Welch  v.  Ware,  32  pecuniary  estimation.  Ten  Hopen  v. 
Mich.   72;    Dalman   v.    Kontiing.   54  Walker,  96  Mich.  236. 

Mich.  320.  Held,  in  Durfee  v.  New-  •»  107  Mich.  207;  Ford  v.  Cheever, 
kirk,   83  Mich.  522,  that  exemplary     105  Mich.  679. 

723 


§  707.]  CAERIEES    or    PASSENGEES.  [PAET    TI. 

trusted  to  them  for  delivery  to  plaintiff's  customers  in  Xew 
York,  which  they  appropriated  to  their  own  use,  sending  them 
to  their  own  customers  and  to  supply  their  own  contracts, 
knowing  that  they  had  no  right  to  do  so,  the  court  held  that 
it  was  not  error  to  charge  the  jury  that  "  if  they  can  say  from 
the  evidence  that  the  defendants  dishonestly  overrode  the 
rights  of  the  plaintiff  for  their  own  purposes,  knowing  that  the 
goods  in  question  were  his  and  not  theirs,  and  disregarding  his 
rights  took  the  goods  for  their  own  use,  punitive  damages  may 
be  awarded."  ^ 

It  appears,  however,  that  the  disagreement  of  authorities  is 
more  as  to  the  name  of  the  damages  that  all  agree  may  be  al- 
lowed. Kone  of  the  courts  or  authors  will  claim  but  that 
under  certain  circumstances  proved  in  a  case,  exemplary  dam- 
ages may  be  properly  recovered,  though  some  of  them  would 
insist  that  the  exemplary  damages  are  allowed  and  recoverable 
only  as  actual  damages,  or,  as  they  are  sometimes  called,  com- 
pensatory damages. 

Mr.  Justice  Foster,  in  Fay  v.  Parker^-  already  cited,  in  the 
course  of  his  opinion  says:  " Call  them  what  you  may,  com- 
pensatory in  fact  or  punitory  in  their  operation,  if  the  same 
damages  are  awarded  but  once  the  distinction  is  merely  verbal, 
and  we  may  well  doubt  whether  the  learned  chief  justice,  in 
recommending  the  award  of  damages  with  a  liberal  hand,  in- 
tended anything  more  or  other  than  we  mean  when  we  tell 
juries  to  give  the  plaintiff  what  the  defendant  ought  to  pay 
and  the  plaintiff  ought  to  receive  in  view  of  the  wrong  and 
suffering  inflicted  by  the  malice,  insult  and  indignity  exhib- 
ited by  the  circumstances  of  the  case." 

The  supreme  court  of  Michigan,  in  Boss  v.  Leggett^  say:  "It 
is  of  little  consequence  by  what  name  the  damages  given  are 
called,  provided  the  case  is  one  involving  that  class  of  injuries 
for  which  the  plaintiff  is  entitled  to  recover;  they  may  be 
called  "  exemplary,"  '•  punitory,"  "  vindictive,"  "  compensa- 
tory," or  added  damages.  The  important  question  always  is 
in  every  case.  Was  the  character  of  the  wrong  suffered  or  in- 
jury sustained  such  as  may  be  lawfully  atoned  for  or  compen- 
sated in  money  ?  " 

1  Downing  v.  Outerbridge,  25  C.  C.         "■  53  N.  H.  342. 
A.  244,  79  Fed.  931.  3  61  Mich.  445-452. 

724 


en.  VI.]  ACTIONS    AGAINST    CARRIERS    OF    GOODS.  [§   70S. 

§  708.  Liability  of  principal  or  master  for  acts  of 

agents  or  servants, —  It  is  well  understood  that  carrier  cor- 
porations, like  other  corporations,  act  entirely  through  their 
servants  or  agents.  The  liability  of  such  a  carrier,  as  well  as 
all  who  transact  business  by  agents  or  servants,  for  damages 
must  depend  upon  the  authority  of  the  agent  or  servant  who 
caused  tlie  injury.  It  should  appear  that  they  were  acting 
within  the  scope  of  their  authority,  express  or  implied,  at  the 
time  they  were  guilty  of  the  breach  of  duty.  In  determining 
whether  this  relation  existed  it  is  necessary  to  show  that  the 
agent  or  servant  was  engaged  in  carrying  out  the  object  of  his 
employment;  that  he  was  working,  or  acting,  or  operating 
within  the  scope  ©f  his  authority,  not  that  he  was  authorized 
to  commit  the  specific  tort,  but  that  the  act  complained  of  was 
incident  to  the  performance  of  the  duty  that  his  master  or 
principal  had  employed  him  to  perform;  that  while  in  the 
service  of  the  master  or  principal,  and  while  acting  for  him, 
and  in  the  course  of  his  employment,  the  tort  complained  of  was 
committed.  The  true  rule  would  seem  to  be  that  the  master 
is  only  responsible  so  long  as  the  servant  can  be  said  to  be 
doing  the  act  he  was  employed  to  do,  and  while  in  the  course 
of  his  employment  as  servant  he  was  guilty  of  the  negligence 
complained  of.^  In  Doiuney  v.  Railway  Co?  the  court  say: 
*'  Where  the  wrong  has  been  done  under  circumstances  indi- 
cating wantonness,  violence  and  oppression  upon  the  part  of 
the  wrong-doer,  exemplary  damages  are  recoverable.  But 
such  damages  are  not  recoverable  against  a  railroad  company 
unless  the  injury  is  the  result  of  the  authorized  or  ratified  mis- 
conduct of  its  servants.  There  are  some  cases  which  hold  that 
when  a  person  is  injured  by  gross  negligence  on  the  part  of 
the  railway  company  he  may  recover  exemplary  damages;  but 
the  better  and  more  reasonable  doctrine  seems  to  be  that  the 
railway  company  is  not  to  be  held  liable  in  exemplary  dam- 
ages for  injuries  caused  by  the  negligence  of  its  servants,  un- 
less it  be  shown  that  the  servant's  act  was  wilful,  and  was 

1  Quarman  v.  Burnett,  6  M.  &  W.  Railway  Co.,  33  W.  Va.  433;  Talbott 
599;  Joslin  v.  Grand  Rapids,  etc.  R.  v.  Railway  Co.,  42  W.  Va.  560;  Pat- 
Co.,  50  Mich.  516;  Sleath  v.  Wilson,  terson  on  Railway  Accident  Law, 
9  C.  &  P.  607;  Mech.  on  Agency,  sec.  sees.  393,  471;  Cleghorn  v.  N.  Y.  etc. 
737.  R.  Co.,  5G  N.  Y.  44. 

2  28  W.  Va.  732,  743;  Ricketts   v. 


§  709.]  CARRIERS    OF    PASSENGERS.  [pART    YI. 

either  authorized  or  ratified  bj  the  company;  but  such  author- 
ization or  ratification  can  be  evidenced  either  by  an  express 
order  to  do  the  act,  or  an  express  approval  of  its  commission, 
or  by  an  antecedent  retention  of  a  servant  of  known  incompe- 
tency, or  by  a  subsequent  retention  or  promotion  of  the  neg- 
ligent servant." 

§  709.  Damages  for  refusal  to  receive  and  transport. — 
The  action  for  refusal  to  receive  the  goods  and  transport  them 
cannot  depend  upon  a  contract,  for  none  exists;  it  is  based 
entirely  upon  the  duty  of  the  carrier  to  receive  and  carry  the 
property  offered.  As  we  have  seen,  there  may  be  a  good  and 
legal  reason  for  such  refusal  on  the  part  of  the  carrier,  as,  for 
example,  that  the  goods  were  not  fit  for  shipment.  But  if 
there  is  no  valid  legal  reason  for  the  refusal,  then  the  measure 
of  damages,  in  case  the  goods  are  articles  of  merchandise  and 
shipped  for  the  market,  has  been  held  to  be  such  an  amount  as 
would  place  the  plaintiff  in  the  position  he  would  occupy  had 
the  goods  been  received,  carried  and  delivered  at  their  destina- 
tion; that  is  to  say,  the  difference  in  the  value  of  the  goods  at 
the  time  the}^  would  have  to  be  delivered,  if  transported,  at 
the  place  of  destination,  and  their  value  at  the  place  of  pro- 
posed shipment,  with  interest  from  the  time  they  should  have 
arrived,  less  the  cost  of  transportation.^  It  must  be  remem- 
bered, however,  that  it  is  the  duty  of  the  injured  party  not  to 
magnify  or  increase  the  damages,  but  rather  to  make  them  as 
small  as  he  reasonably  can  under  the  circumstances."  And  so 
in  this  case  it  would  be  the  shipper's  duty  to  ship  the  goods  if 
he  could  do  so  by  some  other  route;  and  in  such  case  the  meas- 
ure of  damages  would  be  the  amount  of  expense  he  was  com- 
pelled to  pay  in  carrying  the  goods  and  delivering  them  to  the 
other  carrier,  the  excess  freight,  if  any,  he  was  obliged  to  pay, 
and,  if  delayed  because  of  the  refusal,  whatever  loss  Avas  in- 

1  Ward  V.  Elkins,  34  Mich.  439,  and  539.  When  the  goods  are  perishable, 
see  cases  cited  in  briefs  of  counsel ;  the  shipper  must  not  remain  inactive. 
Harvey  v.  Railway  Co.,  124  Mass.  but  must  adopt  whatever  means  are 
421;  Galena,  etc.  R.  Co.  v.  Rae,  18111.  at  hand  to  forward  the  goods  at  once: 
488;  Cobb  v.  Railway  Co.,  38  Iowa,  nor  can  he  send  the  goods  in  different 
GOl.  parcels  and  claim  damages  for  the 

2  Houston,  etc.  Co.  v.  Smith,  63  Tex.  additional  freight  charges.  Ward, 
822,  22  Am.  &  Eng.  Cases,  421;  Pitts-  etc.  Co.  v.  Elkins.  .s»pra;  Grund  v. 
bui'g,  etc.  Co.  V.  Morton  et  al,  61  Ind.  Pendergast,  58  Barb.  216. 

726 


CH.  VI.]  ACTIONS    AGAINST   OAKRIERS    OF    GOODS.       [§§  TIO,  711. 

curred  on  that  account.  But  if  the  price  demanded  by  the 
other  carrier  was  reasonable,  but  would  have  rendered  the  ship- 
ment unprofitable,  the  shipper  would  not  be  justified  in  pro- 
curing such  shipment,  for  in  -«uch  case  he  could  procure  like 
goods  in  the  terminal  market  for  a  less  amount,  and  therefore 
there  would  be  no  damage. 

§  710.  For  loss  or  injury  in  transit.— If  the  goods  are  lost 
or  injured  in  transit,  we  have  but  to  apply  the  principle  dis- 
cussed in  the  last  section.  The  damages  would  be  as  there 
stated:  such  an  amount  as  would  place  the  principal  in  the 
position  he  would  occupy  had  the  goods  been  delivered  at  the 
place  of  their  destination  ;  and  where  the  carrier  received  goods 
for  transportation  and  failed  to  deliver  them,  it  was  held  that 
the  owner  was  entitled  to  the  market  value  of  the  goods  at  the 
time  and  place  they  should  have  been  delivered,^  with  mterest 
from  that  time.  In  Cutting  v.  Railway  Co?  the  supreme  court 
of  Massachusetts  say:  "  As  a  general  rule  the  appropriate  com- 
pensation for  the  breach  of  a  contract  to  deliver  goods  is  their 
market  value  in  money  at  the  time  and  place  at  which  they 
should  have  been  delivered,  with  interest  thereon,  and  it  is  ad- 
mitted that  such  is  the  rule  in  an  action  against  acarrier  if  the 
goods  are  never  delivered.'" 

The  measure  of  damages,  however,  for  goods  delivered  in  a 
damaged  condition  is  held  to  be  the  diiference  between  the 
value  of  the  goods  in  their  damaged  state  and  their  value  'at 
the  place  of  destination  had  they  been  delivered  in  good  order.* 
But  where  a  machine  was  so  damaged  by  the  carrier's  negli- 
gence that  the  cost  of  repairing  it  Avould  equal  the  cost  of  a 
new  one,  it  was  held  that  the  plaintiff  could  recover  the  value 
of  the  machine,  the  freight  paid  and  interest  from  the  time 
when  it  should  have  been  delivered.* 

§  711.  Shipper  bound  by  value  placed  upon  his  goods 
when  shipped. —  But  where  a  shipper  places  a  value  upon  his 
goods  and  knowingly  enters  into  a  contract  for  their  shipment 
at  a  price  based  upon  such  valuation,  he  is  bound  by  the  con- 

» Spring  V.  Haskell,  4  Allen,  112.         Co.  v.  Berchfield,  12  Tex.  Civ.  App. 

2  13  Allen  (Mass.),  381.  145. 

3 Silverman  v.  Railway  Co.,  51  La.        ^Thomas,  etc.  Co.  v.  Railway  Co., 
Ann.  1785,  26  So.  447;  Heil  v.  Rail-    62  Wis.  642. 
way  Co.,  16  Mo.  App.  368;  Railway 

727 


§  712.]  CARRIERS    OF    PASSENGERS.  [pART    TI. 

tract.  Such  a  contract  does  not  excuse  the  carrier  from  the 
exercise  of  reasonable  care,  but  the  shipper  cannot  have  his 
property  transported  at  a  low  rate  because  of  such  valuation, 
and  in  case  of  loss  compel  the  carrier  to  pay  more  than  the 
value  stated  in  the  contract.^ 

§  712.  Where  the  goods  are  not  merchandise  and  not  mar- 
ketable.—  Goods  that  have  no  market  value,  but  are  espe- 
cially useful  and  valuable  to  the  shipper,  are  often  shipped  and 
lost  or  damaged  in  transit.  The  damages  in  such  case  cannot 
be  governed  by  the  market  value  of  the  goods,  because  they 
have  no  such  value,  but  the  recoverable  damages  must  depend 
upon  the  value  of  the  goods  to  the  owner;  but  in  fixing  the 
value  the  owner  will  not  be  permitted  to  base  his  estimate  upon 
a  partial  or  capricious  price,  but  an  amount  must  be  fixed  that 
under  all  the  circumstances  would  be  considered  reasonable 
and  just.^ 

Where  o:oods  were  damao^ed  in  transit  which  had  no  market 
value,  it  was  held  that  the  measure  of  damages  w^ould  be  the 
cost  of  reproducing  or  replacing  them,  and  if  they  could  not 
be  reproduced  or  replaced,  then  the  value  of  the  property  to 
the  owner.*  Where  the  property  shipped  was  a  family  por- 
trait, it  was  held  by  the  Massachusetts  court  that  the  damages 
for  its  loss  would  be  the  value  to  the  owner  and  not  the  mar- 
ket value.  The  court  say:  "The  general  rule  of  damages  in 
trover,  and  in  contract  for  not  delivering  goods,  undoubtedly 
is  the  fair  market  value  of  the  goods.  But  this  rule  does  not 
apply  when  the  article  sued  for  is  not  marketable  property. 
To  instruct  the  jury  that  the  measure  of  damages  for  the  con- 
version or  loss  of  a  family  portrait  is  its  market  value  would 
be  merely  delusive.  It  cannot  with  any  propriety  be  said  to 
liave  any  market  value.  The  just  rule  of  damages  is  the  actual 
value  to  him  who  owns  it,  taking  into  account  its  cost,  the 
practicability  and  expense  of  replacing  it,  and  such  other  con- 
siderations as  in  the  particular  case  affect  its  value  to  the 
owner."*     Where  the  property  shipped  consisted  of  stereo- 

i  Chicago,  etc.  E.  Co.  v.  Miller,  79  Colo.  882,  IS  Am.  &  Eng.  R  Cases, 

111.  App.  472;  Hart  v.  Railway  Co.,  112  637. 

U.  S.  331,  18  Am.  &  Eng.  I^.  Cases.  » Houston,  etc.  R  Co.  v.  Ney,  58  S. 

604;  Railway  Co.  v.  Miller.  16  Neb.  "W.  43. 

661,  18  Am.  &  Eng.  R  Cases,  545.  ^  Green  v.  Railway  Co.,  128  Mass. 

2  Denver,  etc.  R  Co.  v.  Frame,  6  221,  35  Am.  Rep.  370. 

728 


CH.  VI.]  ACTIONS   AGAINST   CAEEIERS   OF   GOODS.       [§§  713,  714. 

typed  plates  to  be  used  by  the  plaintiffs  in  their  special  busi- 
ness and  had  no  market  value,  it  was  said  by  the  Massachu- 
setts court,  "  such  things  cannot,  with  any  propriety,  be  said  to 
have  a  market  value,  and  the  actual  value  to  him  who  owns 
and  uses  them  is  the  just  rule  of  damages  in  an  action  against 
him  who  converts  them  to  his  own  use."^ 

§  713.  Goods  shipped  to  be  delivered  on  contract  of 

sale. —  In  considering  this  question,  the  general  rule  governing 
damages  must  be  kept  in  mind.  It  will  be  remembered  that  as 
a  general  rule  the  damages  in  all  cases  must  be  proximate  and 
the  natural  consequences  of  the  breach  of  duty  or  contract  al- 
leged,- the  maxim  being  "  causa lyroxlma  non  reraota  speciatur;  " 
but  in  the  class  of  cases  under  consideration  the  courts  have 
generally  held  that  where  goods  have  been  transported  by  the 
carrier  to  fill  a  contract  of  sale  between  the  owner  and  the 
consionee,  the  carrier  havino:  notice  of  that  fact  at  the  time  of 
receiving  the  goods  and  entering  upon  the  shipment  of  them, 
the  goods  being  lost  under  circumstances  rendering  the  carrier 
liable,  and  by  reason  of  the  loss"  and  consequent  delay  the 
owner  is  rendered  unable  to  fulfill  his  contract,  the  measure  of 
damages  in  an  action  against  the  carrier  is  governed  by  the 
loss  to  the  owner  b}''  reason  of  the  failure  to  deliver  the  goods 
upon  his  contract  of  sale,  or  the  contract  price  of  the  goods. 

§  714.  Failure  to  deliver  at  time  specified  or  within 

reasonable  time  —  Reasonable  delay. —  As  we  have  seen,  it 
is  the  duty  of  the  carrier  to  transport  and  deliver  the  goods 
shipped  to  the  consignee  within  the  time  stipulated,  and  if 
there  is  no  stipulation  as  to  the  time  of  delivery,  then  within 
a  reasonable  time;  if  the  goods  shipped  are  intended  for  the 
market,  for  a  breach  of  the  contract  of  shipment,  or  a  breach 
of  duty  upon  the  part  of  the  carrier,  the  rule  of  damages 
would  be  the  difference  between  the  value  of  the  goods  at 
the  time  and  place  they  should  have  been  delivered  and 
their  value  when  they  are  in  fact  delivered,  computed  at  the 
place  of  destination,  with  interest,  less  freight   unpaid.^     In 

iStickney  et  al.  v.  Allen,  10  Gray  (N.  Y.)  569;  Railway  Co.  v.  Cobb,  64 

(Mass.),  352.  111.  148. 

2  Hadley  v.  Baxendale,  9  Exch.  341;        3  Railway  Co.  v.  Mudford,  48  Ark. 

Gait  V.   Archer,  7  Grat.  (Va.)  307;  502;  Peet  v.  Railway  Co.,  32  Wis.  594, 

Cobb  V.  Railway  Co.,  38  Iowa,  601;  91  Am.  Dec.  440;  Devereux  v.  Buck- 

Medbury   v.  Railway  Co.,  26   Barb,  ley,  34  Ohio  St.  16,  32  Am.  Rep.  342; 

729 


^    714.]  CAKUIERS    OF    TASSEXGERS.  [pART    VI. 

Cutting  v.  Ttailway  Co}  Mr.  Justice  Grey,  in  rendering  the 
opinion,  said:  "The  true  rule  and  measure  of 'damages,  in  our 
opinion,  whenever  by  reason  of  inexcusable  delay  of  the  carrier 
the  goods  are  not  delivered  until  after  they  have  diminished 
in  market  value,  is  the  amount  of  the  diminution.  This  al- 
lows to  the  person  injured  the  value,  as  exactly  as  it  can  be 
estimated  in  money,  of  that  of  which  he  has  been  finally  de- 
prived by  the  wrongful  act  of  the  defendant;  and  is  the  most 
simple  and  just  rule  as  well  as  the  easiest  to  be  applied;  for  it 
depends  on  the  general  market  value  of  the  goods,  and  involves 
no  contingent  or  speculative  profits,  and  no  consideration  of 
any  other  contracts  made  or  omitted  to  be  made  by  the  plaint- 
iff in  view  of  his  contract  with  the  defendant.  To  refer  to 
such  other  contracts,  or  the  profits  which  might  have  resulted 
from  them,  not  within  the  knowledge  or  contemplation  of  the 
defendant,  would  be  to  hold  him  liable  for  the  consequences, 
or  allow  him  the  benefit,  not  of  his  own  contract  with  the 
plaintiff,  but  of  dealing  between  the  latter  and  third  persons 
with  Avhich  the  defendant  had  nothing  to  do.  .  .  .  The 
distinction  between  loss  of  profits  and  diminution  in  the  mar- 
ket value  of  the  goods  was  well  stated  in  the  first  of  these 
cases  by  Mr.  Justice  Byles,  who  said:  '  Profits  include  the  in- 
creased value  arising  from  the  purpose  to  which  the  plaintiff 
intended  to  apply  the  goods;  whereas  diminution  in  exchange- 
able value  is  only  something  subtracted  from  the  inherent 
value  of  the  articles  themselves.'  '  It  is  admitted  that  deterio- 
ration in  quality  is  to  be  taken  into  account  in  estimating  the 
damage  the  plaintiff  has  sustained;  it  is  admitted  also  that 
loss  or  diminution  in  the  quantity  is  to  be  taken  into  account; 
and  I  do  not  see  why  a  loss  in  the  exchangeable  value  of  the 
goods  should  not  also  be  taken  into  account.'  " 

If  the  goods  are  not  intended  for  the  market,  as,  for  exam- 
ple, household  goods  or  articles  that  are  shipped  for  the  special 
use  of  the  consignee,  the  damages  would  be  measured  by  the 

Sisson  V.  Cleveland,  etc.  Co.,  14  Mich.  Harding,  7  Cush.  516:  Waite  v.  Gil- 

489;  In  re  Peterson  V.  Case  (C.  C),  21  bert.    10   Cush.    177;    Le   Peintur  v. 

Fed.  885;  Railway  Co.  v.  Johnson.  85  Southeastern  Ry.  Co..  2  Law  Times^ 

Ga.  497;  Railway  Co.  v.  Lockhart,  71  (N.  S.),  170;  Gee  v.  Lancashire  &  Y. 

111.  627.  Ry.  Co.,  6  H.  &  N.  211,  9  C.  B.  (N.  S.> 

195  Mass.  (18  Allen),  381;    Fox  v.  646. 

730 


CII.  VI.]       ACTIONS  AGAIXST  CARRIERS    OF  PASSENGERS.       [§§  715-16. 

value  of  the  use  of  the  goods  during  the  delay,  with  interest 
from  the  time  they  should  have  been  delivered.^ 

§  715.  Failure  to  deliver  and  misdelivery. —  If  the  carrier 
after  a  reasonable  time  fails  to^  deliver  the  goods  to  the  con- 
signee, he  will  be  liable  for  their  value  at  the  place  of  desti- 
nation, with  the  freight  paid  and  interest  from  the  time  the 
goods  should  have  been  delivered,  if  they  were  intended  for 
the  market,  or  were  marketable  goods;  and  the  same  rule 
will  generally  obtain  in  cases  of  misdelivery.  Cases  are  often 
peculiar  in  their  facts,  and  it  would  be  impossible  to  lay  down 
a  rule  of  damages  that  would  govern  every  case.  As,  for 
example,  where  goods  were  misdelivered  and  the  consignee  re- 
ceived the  goods  immediately  from  the  party  to  whom  they 
were  wrongfully  delivered,  it  was  held  that,  while  the  plaintiff 
could  recover,  his  recovery  could  only  be  for  nominal  damages.^ 

II. 

Actions  Against  Carriers  of  Passengers. 

§  716.  Survival  of  actions  for  personal  injuries. —  At  the 

common  law  actions  for  personal  injuries  died  with  the  person 
injured,  the  maxim  being  '"'' actio  personalis  moritur  cum,  jper- 
sonay  This  rule  of  law  has  been  modified  by  statutes  in  Eng- 
land and  in  the  several  states  of  the  United  States,  so  that  at 
the  present  time  the  personal  representatives  of  the  deceased 
may  bring  an  action  for  the  injury  and  death  in  all  cases  where, 
if  death  had  not  resulted,  the  injured  person  could  have  sus- 
tained an  action  for  the  injury;  the  action  being  for  the  ben- 
efit of  the  near  relatives  of  the  deceased,  as  the  wife,  if  living, 
or  the  children  or  parents,  or  those  dependent  upon  the  de- 
ceased; and  these  statutes  apply  to  all  cases  resulting  from  in- 
jury whether  by  common  carriers  or  other  persons.^ 

1  Brown  v.  Adams,  3  Tex.  App.  Civ.  be  used  in  business,  thereby  causing 

Cases,  sec.  890;  Marsh  v.  Railway  Co.,  loss  of  profits  and  use,  is  discussed. 

6  Am.  &  Eng.  Ry..  Cases,  359;  Rail-  ^  Rosen  field  v.  Express  Co.,  1  Wood 

way  Co.  V.  Frame,  6  Colo.  382;  Inter-  (U.  S.),  131. 

national,   etc.   Co.   v.   Nicholson.  61  ^ijy  4  jgdw.  iii.,ch.  7,  the  rule  was 

Tex.  550.     And  see  Vicksburg,  etc.  modified  so  as  to  give  an  action  in 

Co.  V.  Ragsdale,  46  Miss.  458,  where  favorof  a  personal  representative  for 

the  rule  of  damages  in  case  of  delay  injuries  to  personalty;  by   3  and  4 

in  transporting  articles  intended  to  Will.  IV.,  ch.  42,  against  personal  rep- 

731 


—     I- 


TIS.]  CAKRIERS    OF    PASSENGERS.  [PART    TI. 

§  717.  When  tlie  injury  does  not  resnlt  in  death. —  Where 
death  does  not  result  from  the  injury,  the  action  can  be  sus- 
tained by  any  person  damaged  by  reason  of  the  injury  result- 
ing from  the  negligence  of  the  defendant;  that  is  to  say,  the 
injured  person  himself,  if  capable  of  bringing  an  action,  may 
recover  against  the  carrier;  or  a  parent  for  an  injury  to  his 
minor  child,  or  a  husband  for  an  injury  to  his  wife,  which  de- 
prives him  of  her  society  and  services. 

THE    PLEADINGS. 

§  718.  Based  upon  what. —  Actions  against  common  car- 
riers of  passengers,  like  actions  against  carriers  of  goods,  are 
based  upon  the  contract  for  carriage,  express  or  implied,  or 
upon  a  breach  of  that  duty  which  the  carrier  owes  to  the  pub- 
lic and  to  the  individual  passenger  to  furnish  safe  transporta- 
tion within  a  reasonable  time  and  in  a  reasonably  comfortable 
manner. 

The  duty  of  the  carrier  to  the  passenger  and  the  duty  of  the 
passenger  to  the  carrier  have  already  been  discussed  in  a  former 
chapter.  A  failure  to  perform  that  duty,  if  there  is  no  legal 
limitation,  fixes  the  liability,  and  the  declaration  or  petition 
in  an  action  ao-ainst  the  carrier  should  in  a  concise  and  logical 
manner  allege  in  apt  and  sufficient  language  the  existence  of 
the  relation  of  carrier  and  passenger,  and  by  averment  ap- 
prise the  court  and  the  parties  of  the  particular  duty  that  the 
carrier  has  failed  to  perform;  or  if  upon  a  contract,  the  par 
ticular  breach  of  the  contract  which  the  injury  complained  of 
has  resulted  in;  that  the  plaintiff  was  in  the  exercise  of  ordi- 
nary care ;  that  the  failure  on  the  part  of  the  defendant  to  per- 
form the  contract  or  duty  resulted  in  the  injury  complained 
of  and  alleging  the  resultant  damages.  The  usual  and  existing 
rules  applicable  to  pleading  are  followed  in  setting  out  in 
proper  language  in  the  declaration  or  petition  the  averments 
above  mentioned.     The  plaintiff  must  by  his  declaration  make 

resentatives  for  injuries  to  person-  Mitchel  v.  Hotchkiss,  48  Conn.  16; 

alty  or  realty,  and  by  9  and  10  Vict,  James  v.  Emmet  Co..  55  Mich.  335: 

eh.  23,  an  act  known  as  Lord  Cami>  Radio  v.  Detroit,  90  Mich.  92;  Davis 

bell's  Act  was  passed,  allowing  ac-  v.  New  York,  etc.  R.  Co.,  143  Mass. 

tions  for  damages  for  the  death  of  305;    Carey  v.  Railway  Co.,  1  Cush. 

the  person  injured.     3  Blk.  Com.  302;  475;  Lyon  v.  Woodward,  49  Ma  69. 
Russell  V.  Sunbury,  37  Ohio  St.  374; 

732 


1 


CH.  VI.]       ACTIONS  AGAINST    CAERIERS  OF  PASSENGERS.       [§§  719-21. 

out  a  case  against  the  defendant,  otherwise  it  would  be  subject 
to  demurrer. 

§  719.  The  answer  or  plea  of  the  defendant. —  The  defend- 
ant may  in  his  plea  or  answer  set  out  any  of  the  defenses 
which  have  already  been  mentioned  by  which  he  is  able  to 
meet  the  case  made  by  the  plaintiff;  that  is  to  say,  a  general 
denial  of  the  allegations  of  the  petition  or  declaration ;  or  that 
the  plaintiff's  injury  was  not  the  proximate  result  of  the  acci- 
dent complained  of,  or  that  the  plaintiff  Avas  guilty  of  con- 
tributory negligence. 

THE    EVIDENCE. 

§  720.  What  must  be  proven. —  It  is  incumbent  upon  the 
plaintiff  to  make  out  his  case  as  alleged  by  a  preponderance 
of  evidence.  The  allegations  marie  in  the  declaration  or  peti- 
tion must  be  proven  so  clearly  that  it  may  be  said  that  the  case 
is  proved.  While  this  is  true,  it  does  not  follow  that  the  plaint- 
iff must  prove  by  oral  or  written  proof  every  fact  in  the  case 
necessary  to  be  proved  in  order  to  sustain  the  allegations  in  his 
petition  or  declaration,  for  there  are  certain  facts  which  are 
presumed;  as,  for  example,  it  appearing  that  the  defendant  is 
a  common  carrier  of  passengers;  that  the  plaintiff  was  a  pas- 
senger for  hire  and  being  transported  by  him  upon  his  vehicle, 
the  law  lays  upon  the  carrier  in  such  case  certain  duties  and 
raises  certain  implied  obligations,  and  it  is  not  necessary  to 
prove  what  these  duties  or  obligations  are;  but  when  the  cir- 
cumstances and  facts  are  shown  which  prove  the  relation  of 
passenger  and  carrier  and  circumstances  of  the  accident,  and 
that  the  injury  resulted  from  the  accident  which  was  the  re- 
sult of  the  negligence  of  the  carrier,  and  the  amount  of  dam- 
ages which  were  directly  caused  by  the  accident,  the  case  is 
made  out. 

§  721.  Presumption  of  negligence. —  Negligence,  however, 
is  not  always  presumed  from  the  mere  fact  that  an  accident 
occurred  which  resulted  in  an  injury  to  the  passenger,  for 
although  a  very  high  degree  of  diligence  is  required  of  the 
carrier,  he  is,  as  we  have  seen,  often  excused  from  liability; 
as  where  the  accident  was  directly  and  entirely  attributable 
to  an  act  of  God  or  the  public  enemy,  or  was  the  result  of  the 
negligence  of  the  plaintiff;  in  such  cases  negligence  would  not 


§   721.]  CAKRIERS    OF    PASSENGERS.  [PART    VI. 

be  presumed,  but  could  only  be  made  out  by  proof;  and  as  to 
whether  the  neo-lio-ence  which  caused  the  accident  and  which 
resulted  in  damages  was  attributable  to  the  carrier  would  be 
a  question  for  the  jury;  but  if  the  accident  resulted  from  a 
collision  of  trains,  from  a  defective  track,  from  broken  and 
unsuitable  vehicles  or  machinery,  in  such  like  cases  negligence 
would  be  presumed,  for  in  all  such  cases  the  defendant  has  the 
exclusive  control  and  management  and  must  therefore  avoid 
the  accidents;  as,  for  example,  he  is  bound  to  so  regulate  the 
running  of  his  trains  that  collisions  will  not  occur.  The  track 
over  which  trains  are  run,  the  vehicles  which  are  used  for  con- 
veying the  passengers,  the  machinery  which  is  employed  by 
the  carrier  for  the  hauling  of  his  trains,  all  are  under  the  im- 
mediate and  absolute  control  of  the  carrier,  and  so  if  he  fails 
to  perform  his  duty  in  respect  to  these  agencies,  negligence 
will  be  presumed  and  he  will  be  liable  for  damages  resulting 
therefrom.  And  "  where  a  stage-coach  was  overturned  by  the 
coming  off  of  a  wheel  upon  a  smooth  and  level  road,  the  evi- 
dence was  held  to  be  competent  to  show  that  the  coach  could 
not  have  been  properly  prepared  for  the  road."^  And  where 
a  railroad  train  ran  from  the  track  and  was  overturned,  it  was 
fairly  presumable,  as  the  machinerj''  and  railway  track  were 
exclusively  in  the  management  of  the  railway  company,  that 
the  accident  arose  from  its  want  of  care;  no  explanation  of  the 
cause  being  offered.-  In  Kendall  v.  Boston,^  m  summing  up 
the  cases  cited,  the  court  say :  "  In  all  these  cases  it  is  to  be 
observed  that  the  defendant  has  been  proved  to  have  had  the 
exclusive  control  and  management  of  these  objects  or  agen- 
cies from  some  defect  in  which  the  accident  must  have  taken 
place." 

In  Edgerton  v.  Railioay  Co.*  it  is  said:  "Whenever  a  car  or 
train  leaves  the  track  it  proves  that  either  the  track  or  ma- 
chinery, or  some  other  portion  thereof,  is  not  in  a  proper  con- 
dition, or  that  the  machinery  is  not  properly  operated,  and 
presumptively  proves  that  the  defendant,  whose  duty  it  is  to 
keep  the  track  and  machinery  in  the  proper  condition,,  and  to 

1  Ware  v.  Gay,  11  Pick.  (Mass.)  106.        » 118  Mass.  234,  236. 

2Carpue  v.   London,  etc.  R.  Co.,  5        ^39^.  Y.  227,  229. 
Q.  B.  747:  Feital  v.  Railway  Co.,  109 
Mass.  390,  405. 

734 


CH.  VI.]        ACTIONS    AGAINST   CARRIERS    OF    PASSENGERS.  [§  721. 

operate  it  with  the  necessary  prudence  and  care,  has  in  some 
respect  violated  this  duty.  It  is  true  that  a  bad  state  of  the 
track  or  machinery  may  have  resulted  from  the  wrongful  act 
of  persons  for  whose  conduct  the  defendant  is  not  responsible 
and  the  injury  to  the  passenger  may  have  resulted  therefrom, 
and  in  such  case  the  company  is  not  responsible;  but  such  cases 
are  extraordinary,  and  those  guilty  of  perpetrating  such  acts 
are  highly  criminal;  and  therefore  there  is  no  presumption  of 
the  perpetration  of  such  acts  by  others,  and  the  company,  if 
excusable  upon  this  ground,  must  prove  the  facts  establishing 
such  excuse."  And  where  a  passenger  in  defendant's  stage- 
coach was  drowned  by  the  coach  being  precipitated  into  the 
water  because  of  the  uncoupling  of  the  fore-wheels  while  it  was 
being  driven  into  a  ferry-boat,  it  was  held  that  the  negligence 
of  the  defendant  would  be  presumed.^ 

The  court  of  Minnesota  lays  down  the  following  rule :  "  Where 
an  injury  occurs  to  a  passenger  through  a  defect  in  the  con- 
struction or  working  or  management  of  the  vehicle,  or  anything 
pertaining  to  the  service  which  the  carrier  ought  to  control,  a 
presumption  of  negligence  arises  from  the  happening  of  the 
accident,  and  upon  such  proof  the  burden  will  devolve  upon 
the  defendant  to  exonerate  himself  by  showing  the  existence 
of  causes  beyond  his  control,  unless  evidence  thereof  appears 
as  part  of  plaintiff's  own  case."  And  the  court  further  say: 
"The  severe  rule  which  enjoins  upon  the  carrier  such  extraor- 

1  McLean  v.  Burbank,  11  Minn.  377:  note,  15  L.  R.  A.  35,  36,  37.  In  Persh- 
Stokes  V.  Saltonstall,  38  U.  S.  (13  Pet.)  ^ng  v.  Railway  Co.,  71  Iowa,  561,  held, 
181,  10  L.  ed.  115;  Lawrence  v.  "  where  a  passenger  is  injured  by  an 
Green,  70  Cal.  417,  59  Am.  Rep.  428;  accident  to  a  train,  the  presumption 
Anderson  v.  Scholey,  114  Ind.  553;  of  negligence  arises  only  as  to  those 
Parish  V.  Reigle,  11  Grat.  (Va.)  697;  acts  or  omissions  which  might  have 
Baltimore, etc.  Co.  v.  Worthington,  21  caused  the  accident."  N.  J.  etc.  Co. 
Md.  275,  83  Am.  Dec.  578;  Wilson  v.  v.  Pollard,  89  U.  S.  (33  Wall.)  341.  23 
Railway  Co.,  28  Minn.  278;  Meier  v.  L.  ed.  877.  In  Railway  Co.  v.  Wal- 
Railway  Co.,  64  Pa.  St.  330;  Railway  rath,  38  Ohio  St.  461.  it  was  held  that 
Co.  V.  Williams,  74  Ind.  463;  Cleve-  "on  proof  of  injuries  sustained  by  a 
land,  etc.  R.  Co.  v.  Newell,  104  Ind.  passenger  on  a  railroad  train  by  the 
364;  Mitchell  v.  Railway  Co.,  87  Cal.  falling  of  a  berth  in  a  sleeping-car, 
62, 11  L.  R.  A.  130;  Peoria,  etc.  R.  Co.  and  that  the  passenger  was  without 
V.  Reynolds,  88  111.  418;  Louisville,  fault,  a  presumption  arises,  in  the 
etc.  Co.  V.  Jones,  108  Ind.  551.  And  absence  of  other  proof,  tliat  the  rail- 
see  Barnowski  v.  Helson,  89  Mich,  road  company  is  liable."  (Citing 
533,  15  L.  R.  A.  33,  also  cases  cited  in  cases.) 

735 


§   722.]  CARRIERS    OF    PASSENGERS.  [PART    VI. 

diaary  care  and  diligence  is  intended,  for  reasons  of  public 
policy,  to  secure  the  safe  carriage  of  passengers  in  so  far  as 
human  skill  and  foresight  can  effect  such  result."^ 

§  722.  Contributory  negligence. —  Among  the  most  fre- 
quent defenses  to  actions  for  personal  injuries  against  carriers 
of  passengers  is  that  of  contributory  negligence  on  the  part  of 
the  plaintiff.  The  plaintiff,  as  we  have  seen,  must  be  free  from 
negligence  upon  his  part,  else  he  cannot  recover.  As  to  the 
necessity  of  the  plaintiff  alleging  in  the  declaration  or  petition 
that  he  was  exercising  due  diligence,  or,  in  other  words,  was 
free  from  negligence  which  contributed  to  the  injury,  the  au- 
thorities do  not  entirely  agree.  While  it  is  usual  to  so  allege, 
or  at  least  to  allege  facts  from  which  the  conclusion  is  infer- 
able, it  would  seem  that  the  weight  of  authority  is  that  it  is 
not  necessary  for  the  plaintiff  to  aver  that  he  was  free  from 
such  negligence,  the  rule  being  that  it  is  not  necessary  to  an- 
ticipate the  answer  of  the  adversary,  which,  as  Hale,  C.  J.,  has 
said,  is  "  like  leaping  before  one  comes  to  the  stile."  This 
seems  to  be  the  rule  in  England  and  in  the  following  states  in 
the  Union:  Alabama,  California,  Georgia,  Kansas,  Kentucky, 
Minnesota,  Missouri,  Montana,  jSIebraska,  New  Hampshire, 
ISTew  Jersey,  North  Carolina,  North  Dakota,  Ohio,  Oregon, 
South  Carolina,  Texas,  Virginia,  AVashington,  West  Virginia, 
Wisconsin,  and  New  York. 

On  the  other  hand,  there  are  a  number  of  states  which  hold 
that  the  plaintiff  must  aver  that  he  was  free  from  contributory 
negligence,  or,  at  least,  that  the  injury  occurred  without  fault 
upon  his  part:  Indiana,  Maryland,  ]\[aine,  Massachusetts,  Mich- 
igan, Ehode  Island,  Illinois  and  Iowa. 

It  being  necessary  to  make  out  di  prima  facie  case  to  prove  the 
allegations  of  the  declaration  or  petition,  it  therefore  follows 
that  in  the  states  where  it  is  incumbent  upon  the  plaintiff  to 
allege  that  he  is  free  from  negligence  or  fault  which  contrib- 
uted to  the  injury,  the  burden  of  proof  would  be  upon  him 
to  so  prove  upon  the  trial,  and  in  those  cases  where  it  is  not 
necessary  so  to  allege,  that  the  burden  of  proof  would  be 
upon  the  defendant  to  show  that  the  plaintiff  was  guilty  of 

•  Smith  V.  Railway  Co.,  32  Minn.  1,  and  extended  brief  of  counsel,  Spell- 
50  Am.  Rep.  550;  and  see.for  a  general  man  v.  Rapid  Transit  Co.,  30  Neb.  890, 
discussion,   citations  of  authorities    55  N.  W.  370,  20  L.  R.  A.  316. 

73G 


CH.  VI.]       ACTIONS  AGAINST   CARRIERS  OF  PASSENGERS.       [§§  723-24. 

contributory  negligence;  in  other  words,  that  the  necessary 
allegation  would  govern  as  to  the  burden  of  proof.^ 

DAMAGES. 

§  723.  General  rules  applicable.—  The  general  rules  appli- 
cable to  damages  which  have  already  been  discussed  as  appli- 
cable to  common  carriers  of  goods  are  applicable  here.  Com- 
pensation for  the  personal  injury  of  the  plaintiff  is  sought 
either  in  compensatory,  exemplary,  vindictive  or  punitive  dam- 
ages. The  rule  always  applicable  to  every  case  where  dam- 
ages are  sought,  and  which  must  never  be  lost  sight  of,  is  that 
the  damages  recoverable  must  be  the  proximate  and  natural 
consequences  of  the  injury.  "You  must  have  something  im- 
mediately flowing  out  of  the  breach  of  contract  complained 
of,  something  immediately  connected  with  it,  and  not  merely 
connected  with  it  through  a  series  of  causes  intervening  be- 
tween the  immediate  consequence  of  the  breach  of  contract 
and  the  damage  or  injury  complained  of."^ 

§724.  Proximate  or  remote  consequences. —  "Where  the 
evidence  and  findings  show  that  defendant,  while  running  its 
trains  and  locomotives  over  a  street  opposite  plaintiff's  salt 
vats,  unlawfully  cast  over  and  on  plaintiff's  land  and  salt  vats 
great  quantities  of  dirt,  dust  and  cinders,  whereby  the  amount 
of  salt  produced  by  plaintiff  was  lessened  in  quantity,  deterio- 
rated in  quality  and  diminished  in  value,  the  damages  are  not 
too  remote  or  speculative  to  justify  a  recovery."*  In  an  ac- 
tion for  personal  injuries  it  was  held  sufficient  if  the  damages 
claimed  "  legitimately  flowed  from  the  negligent  act  of  de- 
fendant, and  whether  such  damages  might  have  been  foreseen 
by  the  defendant  is  immaterial."  *  In  a  case  where  a  florist 
brought  an  action  for  damages  against  a  gas  company  by  rea- 
son of  gas  escaping  and  damaging  his  plants,  undertaking  also 
to  recover  for  injury  to  his  business  reputation  on  account  of 
the  failure  of  the  plants  sold  to  customers  to  grow  as  recom- 
mended, the  court  of  New  Hampshire  held  that  the  full  dam- 

^  Cases  have   been   collected  and        'Syracuse,  etc.  Co.  v.  Railway  Co., 
cited  and  largely  quoted  in  5  Ency.     60  N.  Y.  Sup.  40. 
of  PI.  &  Pr.  1,  etc.,  and  in  Hutch,  on        *  Grouse  v.  Railway  Co.,  104  Wis. 
Car.,  sees.  802.  803,  and  notes.  473,  80  N.  W.  753. 

2Hobbs  V.  Railway  Co.,  L.  R.   10 
Q.  B.  (1872),  111. 

47  737 


§  724.]  CARRIERS    OF    PASSENGERS.  [PART    VI. 

age  to  the  plants  was  a  proper  matter  of  inquiry,  but  that  a 
claim  for  the  injury  of  the  plaintiff's  reputation  on  account  of 
the  sales  of  damaged  plants  was  conjectural  and  too  remote 
to  be  allowed.  The  court  say:  "The  special  damages  claimed 
and  allowed  for  the  injury  to  the  plaintiff's  business  reputation 
on  account  of  his  sales  of  damaged  plants  were  not  properly 
recoverable  and  must  be  disallowed  as  too  remote.  There  are 
cases  undoubtedly  where  the  tort  complained  of  is  of  such  a 
nature  that  the  law  will  not  nicely  attempt  to  limit  the  amount 
of  reparation,  but  will  extend  the  line  of  relief  so  as  to  em- 
brace all  the  consequences  of  the  wrong-doer's  conduct  al- 
though quite  remote  from  the  original  transaction.  But  as  a 
general  rule  it  may  be  said  that  in  cases  of  tort  without  spe- 
cial aggravation,  where  the  conduct  of  the  defendant  cannot 
be  considered  so  morally  wrong  or  grossly  negligent  as  to  give 
a  right  to  exemplary  or  vindictive  damages,  the  extent  of  the 
plaintiff's  remuneration  is  restricted  to  such  damages  as  are 
the  legal  and  natural  consequences  of  the  defendant's  wrong- 
ful act."'  And  so  expenses  incurred  by  reason  of  the  injury 
are  held  to  be  recoverable;  as,  for  example,  expenses  neces- 
sarily incurred  by  the  plaintiff  while  disabled  in  procuring 
competent  help  in  his  business,  or  to  do  the  work  which  would 
have  been  performed  by  himself  had  he  not  been  injured; 
also  services  of  a  physician  who  is  called  to  render  medical 
aid;  also  amounts  necessarily  paid  for  medicines,  and  the 
value  of  the  services  rendered  by  the  wife  of  the  injured  per- 
son, have  been  held  to  be  recoverable  by  the  husband  in  an 
action  for  the  injury,^  Loss  of  ability  to  labor  is  an  element 
of  damage  which  may  be  considered ;  also  the  loss  of  earn- 
ings and  earning  capacity,  the  rule  being  "  that  the  jury  may 
award  such  fair  sum  as  would  in  their  judgment  compensate 
for  the  lessened  or  destroyed  inability  to  earn  money,  making 
due  allowance  for  the  contingencies  and  uncertainties  that  in- 
here in  such  matter,"*    But  speculative  profits  —  profits  on 

1  Dowe  V.  Winnipesaukee,  69  N.  H.  Traction  Co.,  189  Pa.  St.  430,  42  Atl. 

312,  42  L.  R.  A.  569.  1;  Williams  v.  City,  etc.,  119  Mich. 

2Crouse  v.  Railway  Co.,  104  Wis.  395;    Wynne    v.    Railway    Co.,    156 

473,  78  N.  W.  446;  Omaha  Street  Ry.  N.  Y.  702,  51  N.  E.  1094. 
Co.   V,   Emminger,   57  Neb.   240,  77        3  Denver  v.  Sherrett..31   C.  C.  A. 

N.  W.  675;  North  Chicago,  etc,  Co.  499,  88  Fed.  226;  Chicago,  etc.  Co.  v, 

V.  Zeiger,  78  III  App.  463;  Willis  v.  Postin,    59    Kan.   449;    Levinski    v. 

738 


CH,  VI.]        ACTIONS    AGAINST    CARRIERS    OF    PASSENGERS.  [§  T25. 

invested  capital  —  are  not  recoverable  as  damages  resulting 
from  one's  inability  by  reason  of  injuries  to  transact  his  ordinary 
business ;  such  damages  would  be  considered  too  remote.  The 
loss  of  profits  as  damages  for  a  breach  of  a  contract  is  gov- 
erned by  the  same  rules  that  apply  to  the  recovery  of  other 
damages;  that  is  to  say,  it  must  be  the  direct,  immediate  re- 
sult of  the  injury.  "Wherever  there  is  any  speculation  or  un- 
certainty, such  profits  are  not  recoverable.^ 

So  damages  for  mental  sufi'ering,  as  from  fright,  remorse  and 
bodily  pain,  are  recoverable  when  it  can  be  shown  that  they  are 
the  direct  result  of  the  injury.  Mental  and  physical  suffering 
are  classed  as  actual  damages  when  they  are  a  natural  and 
direct  result  of  the  accident.^  And  it  has  been  held  that  dis- 
figurement caused  by  a  tortious  injury  is  an  element  of  general 
damage,  but  annoj^ance  caused  b}^  contemplation  of  such  dis- 
figurement is  too  remote  to  be  considered  as  an  element  of 
damages.^ 

§  725.  Actual,  exemplary,  punitive  or  vindictive  damages. 
Here,  as  in  the  case  of  common  carriers  of  goods,  exemplary, 
punitive  or  vindictive  damages  can  no  doubt  be  recovered,  and 
for  the  same  reasons  and  under  the  same  circumstances;  as 
where  there  is  wanton  or  malicious  invasion  of  the  rights  of  the 
injured  person,  where  there  is  vindictiveness  on  the  part  of 
the  defendant,  the  weight  of  authority  seems  to  be  that  ex- 
emplary or  punitive  damages  may  be  recovered. 

The  discussions  already  had  upon  this  subject  as  applicable  to 
common  carriers  of  goods  will  apply  here,**  and  while  there  is 
some  disagreement  among  the  courts  with  reference  to  this 

Banking  Co.,  34  C.  C.  A,  452,  92  Fed.  ously  impair  hex*  prospects  of  niar- 

449;  Mirandona  v.  Burg,  51  La.  Ann.  riage  when  she  reaches  a  marriage- 

1190;  Raynorv.  Brewing  Co.,  100  Wis.  able  age,  such  fact  may  properly  be 

414;  Conway  v.  Mitchell,  97  Wis.  390.  considered  by  a  jury  as  an  element 

1  Cent.  Trust  Co.  v.  Clark,  34  C.  C.  of  damages  resulting  from  the   in- 

A.  354,  93  Fed.  393.  jury. 

^OmahaSt.  Ry.  Co.v.Emminger,57  ^Giffen   v.   City  (Idaho,  1898),    55 

Neb.  240, 77  N.  W.  675.     InO'Flaherty  Pac.  545;  Kalen  v.  Railway  Co.,  18 

V.   Railway    Co.,  54    N.  Y.  Sup.    96,  Ind.  App.  203,  47  N.  E.  694.     Where 

it    was    held  that    "injuries    from  there  is  physical  injury  from  which 

fright  accompanying  a  physical  in-  damage  results,  fear  may  be  consid- 

jury  furnishes  a  basis  for  recovery  ered  in  aggravation.     Jones  v.  Rail- 

of  damages."    Where  a  personal  in-  way  Co.,  48  N.  Y.  Sup.  914. 

jury  to  a  little  girl  is  such  as  to  seri-  *  See  ante,  §  706,  etc. 

739 


§  725.]  CAKRIEES    OF    PASSENGERS.  [PART   VI. 

subject,  it  would  seem  that  the  real  difference  in  the  holdings 
of  the  courts  is  very  slight.  The  courts  that  seem  to  take  ex- 
ceptions to  this  rule  are  those  which  hold  that  damages  must 
be  compensatory,  and  yet  it  does  not  require  a  very  great 
stretch  of  the  imagination,  or  any  other  than  the  application 
of  sound  reasoning,  for  one  to  conclude  that  exemplary  or  vin- 
dictive damages  as  held  by  the  majority  of  the  courts  are,  after 
all,  generally  simply  compensatory ;  in  that  it  is  compensation 
for  the  real  and  actual  damage  to  the  person  who  has  suffered 
the  injury  —  compensation  for  the  wanton  and  malicious  inva- 
sion of  rights.  Because  in  such  cases  the  oppression  and  vin- 
dictiveness  of  the  defendant  who  has  been  guilty  of  perpetrat- 
ing the  wrong  cannot  be  fully  compensated  for  in  any  other 
way,  and  so  such  damages  are  after  all  actual  and  compensatory. 

740 


INDEX. 


References  are  to  sections. 

ACCIDENT,  INEVITABLE,  55,  108,  149,  150,  403.    See  Bailments;  Com- 
mon Careiers;  Innkeepers. 
ACTIONS  AGAINST  CARRIERS  (Ch.  VI,  Part  VI)  — 
Actions  against  common  carriers  divided  — 

(1)  Against  common  carriers  of  goods. 

(2)  Against  carriers  of  passengers.     Ch.  VI. 
Actions  Against  Common  Carrier  of  Goods  — 

the  basis  of  the  action,  690. 

what  actions  will  lie,  691. 

actions  ex  delicto  and  ex  contractu,  690,  691. 

option  to  bring  either,  even  if  special  contract,  693. 

advantages  of  action  ex  delicto,  693. 

for  refusal  to  carry  goods,  must  be  ex  delicto,  694  ' 

parties  to  the  action,  695. 

consignee  presumed  to  be  owner,  696. 

one  having  special  property,  party  to  action,  697. 

consignor,  may  bring  action  when,  698. 

party  defendant,  699. 
Pleadings. 

pleadings  in  the  action,  700. 

declaration  or  petition,  700. 

defenses,  701. 
Proofs. 

proofs  in  the  action,  703. 

negligence,  proof  of,  703. 

proof  of  by  defendant,  704 
Damages. 

of  what  damages  generally  consist,  705. 

actual,  exemplary,  punitive,  vindictive,  706. 

exemplary  confined  to  liberal  compensation,  707. 

liability  of  principal  or  master  for  acts  of  agent  or  servant,  708. 

damages  for  refusal  to  receive  and  transport,  709. 

damages  for  loss  or  injury  in  transit,  710. 

shipper  bound  by  value  he  puts  on  his  goods,  711. 

as  to  value  when  goods  not  merchandise  and  not  marketable,  712. 

when  goods  shipped  to  be  delivered  on  sale  already  made,  713. 

damages  for  failure  to  deliver  at  time  specified  or  within  reason- 
able time,  714. 

damage  for  failure  to  deliver;  for  misdelivery,  715. 
741 


742  INDEX. 

References  are  to  sections. 

ACTIONS  AGAINST  CARRIERS  (continued)  — 
Actions  Against  Carriers  of  Passengers. 
survival  of  actions  for  personal  injuries,  716. 
actions  when  injury  does  not  result  in  death,  717. 
The  Pleadings. 

pleadings  based  on  what,  718. 
based  on  duty  of  carrier  or  contract.  718. 
declaration  or  petition  should  contain,  718. 
answer  or  plea  of  defendant,  719. 
The  Evidence. 

what  must  be  proven,  720. 
negligence,  presumption  of,  721. 
contributory  negligence,  722. 
as  to  necessity  of  alleging  it,  723. 
Damages. 

general  rules  applicable,  723. 
proximate  or  remote  consequences.  726. 
what  damages  ai'e  recoverable,  724. 
actual,  exemplary,  punitive,  vindictive,  725. 
ACT  OF  GOD,  55,  56,  106,  108,  353,  469,  470,  471,  473,  473,  504,  505,  538,  649, 
650.    See  Bailments,  Ordinary:   Innkeepers;  Common  Carriers 
OF  Goods;  Carriers  of  Passengers;  Carriers  of  Baggagk 
when  will  excuse  bailee's  liability,  55. 
see  Pledge  and  Pawn. 
AGENTS  — 

the  bailment  relation  has  element  of  agency,  44 

the  bailee  agent  of  the  bailor,  44. 

expenditures  by  bailee  to  preserve  property,  bailor  liable  for,  44. 

bailee  may  contract  in  bailor's  name  to  preserve,  45. 

agent  may  create  bailment  for  principal,  15. 

agent,  actual  or  apparent,  may  receive  goods,  437. 

the  carrier  authorized  to  receive,  438. 

when  initial  carrier  agent  of  connecting  carrier,  533,  535. 

see  Bailments,  Ordinary;  Innkeepers;  Common  Carriers;  Post- 
office  Department. 
AGISTERS  — 

no  lien  at  common  law,  163. 
reasons  why,  163. 

some  courts  hold  agister  has  a  lien,  163. 
ANIMALS  — 

bailee  must  feed  and  care  for,  45. 
animals  and  offspring,  bailment  of.  111. 

see  Agisters,  163,  etc.;  Animate  Freight,  468. 
inherent  nature  of,  as  to  liability  for,  486. 

see  Carriers  of  Live  Stock,  487-491:  Common   Carriers:  Inn- 
keepers; Pledge  and  Pawn. 
BAGGAGE  OR  PASSENGER'S  EFFECTS  (Ch.  V,  Part  VI)  — 
kinds  of  baggage,  666. 
ordinary  baggage,  definition,  667. 


INDEX.  74:3 

References  are  to  sections. 

BAGGAGE  OR  PASSENGER'S  EFFECTS  (continued) — 
to  determine  what  is  baggage  — 

(1)  station  in  life  of  passenger  considered,  668. 

(2)  business  or  occupation  of  passenger  considered,  668. 

(3)  the  object  of  the  journey,  674. 

(4)  the  effects  must  be  personal  to  the  passenger,  671. 

(5)  must  be  reasonable  in  amount,  673. 
what  is  baggage,  673. 

sample  trunks  or  commercial  baggage  and  effects,  674. 

excess  baggage,  payment  for,  675. 

carrier  may  make  reasonable  regulations  concerning,  676. 

good  faith  required  of  passenger  as  to,  677. 

owner  of  baggage  siiould  be  a  passenger,  678. 

owner  accompanying  baggage,  679. 

free  pass,  baggage  of  one  riding  on,  680. 

liability  of  carrier  for  baggage,  681. 

hand  baggage,  682. 

liability  of  carrier  depends  on  control  of  baggage,  683. 

sleeping-car  companies,  as  to  baggage,  683. 

theft  of  by  servants,  liability  of  company,  684. 

a  high  degree  of  ordinary  diligence  required  as  to,  685. 

mixed  custody  of  baggage  by  passenger  and  carrier,  686. 

Steamship  Company's  Liability  for  Baggage,  686. 

steamship  company's  liability  as  innkeeper,  686. 

baggage  of  steerage  passengers,  687. 

termination  of  liabilit}',  688. 

when  the  passenger  should  receive  baggage  at  terminus  of  jour- 
ney. 688. 

when  carrier  should  deliver  baggage  to  passenger,  688. 

failure  of  carrier  to  deliver  baggage,  689. 

actions  for  loss  or  damage  to,  see  Actions  Against  Carriers  of 
Passengers. 
BAILMENT,  ORDINARY  (Ch.  I,  Part  I)  — 
history  and  origin  of,  1. 
definition  of,  2. 

Sir  William  Jones'  definition  of,  2. 
Judge  Story's  definition  and  criticism,  3. 
a  factor;  a  bailee,  3-5. 

Chancellor  Kent's  definition  and  criticism,  4,  5, 
purpose  of  bailment  may  necessitate  change  in  jiroperty  bailed,  6. 
change  would  affect  rule  that  property  must  be  redelivered,  7. 
property  of  like  specie  and  value  may  be  returned,  7, 
Roman  muttmm,  8. 
grain  stored  in  elevators,  9. 
identical  grain  not  redelivered,  9. 
grain  stored  in  flouring  mill,  10. 
not  grain  but  flour  for  grain,  10. 
parties  to  bailment  —  bailor,  bailee,  IHL 


744  INDEX. 

References  are  to  sections. 

BAILMENT,  ORDINARY  (continued)  — 
who  may  be  bailor  or  bailee.  12. 
competency  of  parties,  13. 

one  incompetent  to  contract  may  become  bailee,  13. 
one  receiving  propert}^  if  incompetent,  liable  as  bailee,  13, 
disability  a  shield,  not  a  sword,  14. 
infant  liable  when  injures  property,  14. 
agent  may  create  bailment  for  principal,  15. 
corporation  may  be  bailor  or  bailee.  16. 
some  common  examples  of  bailment,  17. 
kind  of  property  that  may  be  subject  of  bailment,  18. 
personal  property  only,  subject  of  bailment.  18. 
incorporeal  personalty  may  be,  18. 
stocks,  bonds,  etc.,  18. 
delivery  and  acceptance  are  essentials,  19. 
essence  of  relation  is  possession  of  pi'operty,  19. 
one  cannot  be  made  bailee  against  his  will,  19. 
bailee  must  know  he  has  possession.  19 
title  of  the  bailor  of  property,  20. 
bailee  cannot  dispute  his  bailor's  title,  20. 
bailor  may  sell  or  incumber  the  property,  21. 
bailee's  title,  possession,  21. 
bailor  must  exercise  good  faith,  22. 
must  not  expose  bailee  to  danger,  22. 
bailment  or  a  sale,  23. 
when  not  a  sale,  23. 
when  a  bailment,  23. 
grain  commingled  in  storage,  24 
when  sale,  when  bailment,  24. 
bailment,  sale  or  gift,  how  determined,  25. 
Of  the  Classification  of  Bailments  (Ch.  II,  Part  I). 

Roman  classification,  26. 

the  several  kinds  of  bailment,  26. 

Story's  division  of  locatio  bailments,  26. 

modern  classification,  27. 

compensation  governs,  27. 

modern  classification  includes  earlier,  28. 

bailments  are  ordinary  and  exceptional,  29. 

exceptional  bailments,  30. 

postmasters,  innkeepers,  common  carriers,  30. 

chart  showing  classification  o'f  bailments,  31. 
Rights,  Duties  and  Liabilities  Generally  of  Bailor  and  Bailee 
(Ch.  Ill,  Part  I). 

gratuitous  and  non-gratuitous  bailments,  33. 

consideration  for  the  bailment,  34. 

liability  rests  on  benefit  to  the  parties.  35. 

negligence  or  diligence  governed  by  benefit,  36. 

chart  showing  duties  and  liabilities,  37. 


iNDf;x.  745 

References  are  to  sections. 

BAILMENT,  ORDINARY  fcontinuc-rJ)^ 

diligence  and  negligence  defined,  38. 

are  relative  terms,  38. 

definition  generally  accepted,  .39. 

every  case  ruled  Vjy  its  own  circumstances,  40. 

high  diligence,  gross  negligence,  defined,  41. 

diligence  and  negligence  question  of  law  and  fact,  42. 

classification  of  conditions  and  circumstances,  43. 
Some  Further  General  Principles  as  to  Rights  and  Liabilities 
(Ch.  IV,  Part  I^ 

bailment  relation  an  agency,  44. 

bailee's  right  to  make  expenditures  as  such,  44. 

may,  to  preserve  the  suVjject  of  the  bailment,  44 

may  contract  for  care  of  bailed  property  when  necessary,  45. 

if  property  is  animate,  may  feed  and  care  for,  45. 

bailee's  right  to  use  the  property,  46. 

general  rule  is,  he  must  not  use  it,  46. 

exceptions  when  use  is  necessary  or  beneficial  to  property,  46. 

unwarranted  use  of,  btailee  liable,  47. 

the  use  the  property  is  put  to,  47. 

bailee  may  protect  the  property  and  his  interest,  48. 

may  bring  an  action  if  necessary,  48. 

gratuitous  skilled  bailee,  liability,  49. 

must  exercise  his  ordinary  skill,  49. 

degrees  of  diligence  and  negligence,  50. 

special  deposit  in  bank,  51. 

determining  negligence,  52. 

honesty  and  good  faith  demanded,  .53. 

when  property  claimed  Vjy  third  parties,  54. 

bailee  may  protect  himself,  5G. 

compel  parties  claiming  to  interplead,  54. 

what  will  excase  loss  or  injury  of  property.  55. 

act  of  God,  public  enemy,  irresistible  force,  inevitable  accident, 
fire,  robbery,  5.5. 

if  bailee  obtains  possession  unlawfully  or  tortiously,  liable  for  in- 
jury or  loss,  56. 

not  shielded  by  act  of  God  or  other  excuses,  56. 

bailee  entitled  to  reimbursement,  when.  57. 

when  bailor  cannot  sustain  action  against  third  party,  57. 

bailee  may  have  action  against  third  party,  when,  58. 

liability  modified  or  enlarged  by  contract,  59. 

bailee  can  lessen  liability,  how  far,  60. 

bailee  cannot  contract  against  his  own  fraud  or  gross  negligence,  60. 

redelivery  to  bailor,  61. 

general  rule  is,  must  redeliver  property,  61. 

some  exceptions  to  the  rule,  61,  62. 

not  always  required  to  deliver  the  specific  property,  62. 

excuses  for  non-delivery,  64. 


r46  INDEX. 


References  are  to  sections. 


BAILMENT,  ORDINARY  (continued)  — 

when  loss  without  fault  of  bailee,  64,  par.  1. 

when  property  has  been  delivered  to  true  owner,  63,  par.  2. 

when  deprived  of  property  by  due  process  of  law,  63,  par.  3. 

what  the  dut}'  of  bailee  when  goods  taken  on  legal  process,  63, 

par.  3. 
when  property  demanded  of  him  by  other  parties.  63.  par.  4. 
when  excused  by  the  terms  of  the  contract,  63,  par.  5. 
conversion  of  the  property,  64. 
what  amounts  to,  64. 

bailee's  right  to  compensation  and  lien,  65. 
agreement  for  compensation  necessary  to  create  lien,  66. 
if  no  statute,  bailee  has  lien  by  common  law,  67. 
common-law  lien,  definition  of,  67. 
two  kinds  of  liens,  68. 
particular  or  specific  lien,  definition  of,  68. 
general  lien,  definition  of,  68. 
must  be  delivery  to  the  bailee  to  create  lien,  69, 
finder  of  property  essential  to  lien,  70. 
finder  of  property  may  have  lien,  when,  71. 
extinction  of  lien,  72. 
by  payment  or  tender.  72. 
lien  may  be  waived,  how,  73. 
refusal  to  deliver  for  other  reasons  than  lien,  73. 
lien  waived  by  an  agreement  to  give  credit,  73. 
lien  waived  by  parting  with  possession  of  property,  73. 
lien  once  lost  cannot  be  revived.  74. 
bailor's  right  to  compensation,  75. 
may  arise  from  express  or  implied  contract,  75. 
enforcement  of  lien  of  bailee.  76. 
cannot  foreclose  and  sell  propertj',  76. 
can  sell  by  statutes  regulating  sale,  76. 
Termination  of  Bailments. 
the  several  ways  of,  78. 

(1)  By  expiration  of  the  time  for  which  the  property  was 

bailed,  78. 

(2)  By  reason  of  the  accomplishment  of  the  object,  79. 

(3)  By  act  of  parties,  80. 

possession  of  property  cannot  be  withheld  from  bailor  or  bailee 

if  bailment  gratuitous,  (a),  80. 
no  consideration  for  such  a  contract,  (a),  80. 
bailor  may  revoke  at  will,  (a),  80. 
but  must  be  reasonable,  (a),  90. 
bailor  may  terminate  when  no  fixed  time  of  accomplishment 

of  bailment,  (b),  80. 
may  terminate  when  bailee  fails  to  return  property  at  time 

fixed,  (c),  80. 
mere  declaration  of  ownership  not  enough,  (e),  80. 
but  if  coupled  with  action  showing  denial  of  bailor's  title,  (e),  80. 


INDEX.  ■  747 

References  are  to  sections. 

BAILMENT,  ORDINARY  (continued)  — 

or  if  unequivocal  act  sliowing  holding  adverse  to  bailor,  (e),  80. 

by  sale,  pledge  or  act  of  ownership  by  bailee,  (f),  80. 

by  abuse  and  injury  of  property,  (g),  80. 
the  bailee  may  terminate  the  bailment,  (h),  80. 

when  bailment  for  sole  benefit  of  bailor,  (h),  80. 

should  give  reasonable  notice  to  bailor,  (h),  80. 
if  bailment  for  benefit  of  both  parties,  terminating,  (i),  80. 

cannot  terminate  unless  breach  of  terms  of  contract,  (i),  80. 

bad  faith,  fraud,  dishonest  dealing,  failure  to  execute  trust, 
(i),  80. 

unauthorized  use  of  property  resulting  in  injury,  (i).  80. 

unwarranted  action  inconsistent  with  bailment,  (i),  80. 

when  notice  of  intention  necessary,  (i),  80. 

(4)  By  operation  of  law,  81. 

(5)  By  destruction  of  the  bailed  property,  82. 

(6)  The  death  of  the  bailee.  83. 

if  bailment  gratuitous,  death  of  bailee  terminates,  83. 

if  bailment  non-gratuitous,  83. 

termination  would  depend  upon  contract  creating  relation,  83. 

if  bailment  does  not  require  personal  or  pi-ofessional  skill  of 
bailee,  terminates,  83. 

if  personal  representatives  could  carry  out  bailment,  death 
would  not  terminate,  83. 

if  personal  skill  of  bailee  the  object  of,  death  would  termi- 
nate, 83. 

(7)  By  incompetency  of  parties. 

Liability  of  Bailor  and  Bailee  when  Bailment  for  Sole  Bene- 
fit OF  Bailor  (Ch.  VI,  Part  I). 
these  bailments  of  two  kinds,  85. 

(1)  Mandatum,  definition  of,  86. 

to  create  mandate  three  things  necessary,  86. 

(2)  Depositum,  definition  of,  87. 

use  of  the  deposit,  88. 

depositary  no  right  to  use  deposit,  88. 

when  his  duty  to  use  it,  88. 

special  not  general  deposit,  89. 

gitasi-deposits,  definition  of,  91. 

distinction  between  depositum.  and  mandatum,  93. 

a  contract  relation,  93. 

the  bailee's  liability,  94. 

slight  diligence  required  of  bailee,  94. 

liable  only  for  gross  negligence,  94. 

sole  benefit  of  bailor,  what  is  meant  by,  06. 

least  benefit  to  bailee  places  bailment  in  another  class,  96. 

even  indirect  bailment  changes  class,  97. 

no  matter  how  slight  the  benefit,  97. 


748  INDEX. 

References  are  to  sections. 

BAILMENT,  ORDINARY  (continued)  — 

bailee's  duty  when  notified  of  facts  requiring  special  care,  98. 

failing  to  obey  instructions  or  terms  of  bailment,  99. 
termination  of  the  relation  and  bailor's  remedies,  100. 
Liability  of  Bailor  and  Bailee  When  Bailment  for  the  Sole 
Benefit  of  the  Bailee  (Ch.  VII,  Part  I). 
commodatum,  definition  of,  101. 

bailment  must  be  for  the  sole  benefit  of  the  bailee,  103. 

slightest  benefit  to  bailor  would  change  class  of,  102. 

the  liability  of  the  bailee.  103. 

bailee  held  to  high  diligence,  103. 

liable  for  slight  negligence,  103. 

extraordinary  care  of  property  required,  103. 

infant  bailee  liable  in  action  of  tort,  103. 

bailment  must  be  for  legal  purpose,  104. 

bailor  need  not  be  absolute  owner  of  property,  105. 

qualified  or  special  property'  sufficient,  105. 

thief  may  be  bailor  of  property,  105. 

finder  of  property  may  be  bailor,  105. 

the  right  conferred  by  contract  of  bailment,  10& 

bailee  has  possessory  interest  in  chattel,  may  defend  it,  106. 

may  use  property  as  permitted  by  contract  express  or  implied, 
106. 

liable  for  loss  if  result  of  unauthorized  use,  106. 

if  loss  by  reason  of  act  of  God  or  public  enemy  will  not  be 
excused,  when,  100. 

obligations  of  borrower,  107. 

bailee's  defenses,  108. 

where  loss  occasioned  by  act  of  God,  public  enemy,  irresistible 
force  or  inevitable  accident,  108. 

but  notwithstanding  this,  ordinary  diligence  required,  108. 

injury  or  loss  must  be  without  fault  of  bailee,  109. 

slightest  neglect,  exposure  of  property,  liable  for,  109. 

ordinary  and  extraordinary  expenses,  when  can  pay,  110. 

ordinary  expense  bailee  must  pay,  110. 

extraordinary,  may  collect  of  bailor,  110. 
Redelivery  of  the  Thing  Bailed,  111. 

at  termination  of  bailment,  duty  to  redeliver,  111. 

must  redeliver  with  all  natural  accessions,  111. 

if  bailment  animals,  with  offspring.  111. 

if  bonds  or  security,  with  interest  accumulated  or  collected.  111. 

cannot  retain  property  or  accessions  for  debts  due  him.  112. 

exception  where  compelled  to  pay  extraordinary  expenses,  112. 

may  in  some  cases  have  lien  on  property,  112. 

obligations  of  the  bailoi',  113. 

must  allow  bailee  to  enjoy  bailment  for  time  bailed.  113. 

would  be  liable  if  contract  violated,  113. 

may  terminate  at  any  time  by  notice,  when,  113. 

termination  of  the  bailment,  113. 


INDEX  749 

References  are  to  sections. 

BAILMENT,  ORDINARY  (continued)  — 

Liability  of  Bailor  and  Bailee  when  Bailment  for  Benefit  of 
Both  (Ch.  VIII). 

mutual- benefit  bailments,  nature  and  extent  of,  114. 

mutuality  of  benefit  fixes  liability,  114. 

exceptional  bailments  belong  to  this  class,  114. 

locatio  or  hiring  bailments  belong  to  this  class,  114. 

loeatio  et  conductio  bailments,  definition  of,  115. 

definitions  further  explaining,  116. 

general  view  of,  locatio  conductio,  117. 

how  these  bailments  created,  118. 

the  hiring  bailments  embrace,  119. 

the  letting,  the  hiring,  and  work  and  labor  upon  the  thing,  119. 

general  subdivisions  of  the  hiring  bailments,  120. 
Locatio  Rei  Bailments  (Ch.  IX,  Part  I). 

the  hiring  of  the  thing  for  use,  121. 

this  class  includes,  131. 

■  exercising  unauthorized  dominion  and  control  over  property,  con- 
version, 128. 

bailor's  right  against  third  parties,  129. 
against  bailee,  129. 

bailee's  liability  to  third  parties  for  negligent  use.  130. 

bailee's  negligence  not  imputable  to  bailor,  130. 

bailee's  right  to  assign  his  interest,  131. 

when  such  assignment  considered  a  conversion,  131. 

extraordinary  and  incidental  expenses  of  bailment,  132. 

termination  of  this  bailment,  133. 
Locatio  Operis  Bailments  (Ch.  X,  Part  I). 

the  hiring  of  labor  and  service  upon  the  thing,  134 

the  kinds  of  bailments  embraced  herein,  134. 

the  hiring  of  work  and  labor  upon  the  thing,  135. 

belongs  to  the  mutual-benefit  class,  135. 

a  contract  relation,  136. 

obligations  of  the  employer,  the  bailor,  137. 

the  duty  of  the  bailee,  137. 

bailee  has  special  property  in  the  thing,  138. 

whetlier  the  transation  a  sale  or  a  bailment,  139. 

when  profits  from  the  product  divided,  140. 

when  the  thing  is  destroyed  during  the  carrying  out  of  the  agree- 
ment, 141. 

when  destroyed  after  it  is  finished,  141. 

the  duty  of  the  bailee,  142. 

when  work  performed  by  the  job  and  loss  or  injury  occurs  before 
completion.  143. 

work  must  be  done  as  contracted,  144,  145. 

a  summary  of  tlie  discussion,  146. 

not  every  failure  will  deprive  bailee  of  entire  compensation,  147. 

if  the  failure  to  perform  is  the  fault  of  the  bailor,  148. 


750  INDEX. 


References  are  to  sections. 


BAILMENT,  ORDINARY  (continued)  — 

if  prevented  by  inevitable  accident  or  irresistible  force,  149. 

bailee's  duty  to  reclaim  property  injured  or  temporarily  lost,  150. 

this  his  duty,  even  if  loss  occasioned  by  inevitable  accident  or  irre- 
sistible force,  150. 

bailee  may  do  work  by  an  agent  or  servant,  when,  151. 

where  skill  as  well  as  care  is  required,  153. 

must  exercise  skill  adequate  to  performance  of  the  work,  153. 

if  bailee  purports  to  have  skill,  must  use  it,  154. 

ordinary  skill  required.  155. 

what  is  ordinary  skill  in  this  class,  155. 

degree  of  skill  and  diligence  increases  in  certain  cases,  156. 

increases   with  difficulty  of  performance,  delicacy  of  particular 
work,  156. 

to  what  extent  agent  or  servant  may  be  employed  for  skilled  work, 
157. 
Defenses  op  the  Bailee,  158. 

to  show  that  the  skill  and  care  exercised  were  ordinary,  158. 

that  the  bailor  dictated  how  the  work  should  be  done,  158. 

that  the  injury  occurred  on  account  of  defects  in  property  or  ma- 
terial furnished,  158. 

that  bailor  refused  to  furnish  necessary  funds,  158. 

that  bailor  knew  that  bailee  had  not  the  requii'ed  skill,  158. 

as  to  notice  to  bailor  that  claims  for  defects  must  be  made  within 
a  certain  time,  159. 

title  to  material  used  passes  to  bailor  by  accession,  160. 
The  Lien  of  the  Bailee  in  this  class  of  bailments,  161. 

priority  of  the  lien,  162. 
Agisters  and  Livery-stable  Men  have  no  lien  at  common  law,  163. 

the  reasons  discussed  and  cases  cited,  163. 

the  lien  by  statute  to  such  pei'sons,  164. 

when  chattel  mortgage  takes  precedence  over  lien,  165. 
LOCATIO  CuSTODIiE  BAILMENTS  (Ch.  XI,  Part  I). 

the  letting  of  care  and  custody  of  the  thing  for  hire,  167. 

what  is  embraced  in  this  subdivision,  168. 

dejMsitutn  belongs  to  this  class,  169. 

the  subject  discussed,  170. 
Warehousemen,  How  Defined,  171. 

public  warehouses  and  bonded  warehouses,  172,  173. 

whether  a  sale  or  a  bailment  when  pi-operty  delivered,  175. 
The  Warehouse  Receipt,  176. 

the  warehouseman  may  insure  the  property,  177. 

usage  and  general  course  of  business  often  defines  duty  of,  178. 

at  common  law,  warehouse  receipt  technicallj''  not  negotiable,  179. 

warehouseman  not  permitted  to  impeach  his  receipt,  180. 

negotiability  of  receipt  provided  by  statute,  181. 

when  a  common  carrier  is  a  warehouseman,  183. 

as  when  goods  are  awaiting  delivery.  183. 

three  classes  of  holdings  in  respect  to  this,  183. 


'  INDEX.  751 

References  are  to  sections. 

BAILMENT.  ORDINARY  (continued)  — 

tirst  class:  Carrier  a  warehouseman  when  goods  arrive  at  ter- 
mination, 183. 
second  class:  New  Hampshire  rule  —  after  reasonable  time,  184- 
third  class:    After  proper  notification  to  consignee  of  arrival 
and  reasonable  time,  185. 
wharfingers,  definition,  186. 
when  liability  begins,  187. 
when  liability  ends,  188. 
factors,  or  commission  merchants,  189. 
storage-house  keepers,  defined,  190. 

duty  of  bailor  or  owner  of  goods  stored,  191. 
as  to  dangerous  articles,  bailor's  duty,  192. 
when  the  liability  of  the  storage-house  keeper  begins,  193. 
when  his  liability  ends,  194. 

storage-house  keeper  and  warehouseman  the  same,  195. 
safe-deposit  and  trust  companies,  196. 

not  gi'atuitous,  differs  from  mere  depositum,  197. 
the  nature  of  the  bailment  and  diligence  required,  198. 
high  order  of  diligence  applicable  to,  198. 
other  classes  of  custodians,  199. 

liability  of  bailee  in  ciistodice  bailments,  200. 
when  does  the  liability  commence  and  end,  201. 
as  to  proper  place  and  kind  of  storage,  202. 
diligence  must  keep  pace  with  improvements,  203. 
negligence,  proof  of,  204. 

burden  of  proof  of  negligence,  does  it  shift,  205. 
question  summed  up  and  rule  settled,  206. 
contributory  negligence,  207. 

when  applicable  as  defense  in  bailments,  207. 
negligence  of  servants,  208. 

unauthorized  use  of  chattels,  209. 
delivery,  misdelivery,  non-delivery,  210. 

general  rule  that  the  bailee  must  redeliver,  210. 
some  exceptions  noted,  210. 
bailee  liable  for  misdelivery,  210. 
confusion  of  goods,  211. 

when  permitted  by  contract,  211. 
criminal  liability  of  bailee,  embezzlement,  213. 
termination  of  the  relation,  213. 
compensation,  lien,  215. 
BAILOR  AND  BAILEE  — 

parties  to  bailments,  and  who  may  be,  11,  13. 

competency  of  parties,  13. 

as  to  possession  and  knowledge  of  property,  19. 

see  Property  (kind  of  subject  of  bailment);  Bailment,  Ordinary; 
Rights,  Duties  and  Liabilities  Generally  of  Bailor  and 
Bailee  (ch.  Ill,  Part  I;  also  ch.  IV);  Liability'  of  Bailor  and 


752  INDEX. 

References  are  to  sections. 

BAILOR  AND  BAILEE  (continued)  — 

Bailee  when  Bailment  for  Sole  Benefit  of  Bailor  (ch.  VI, 
Part  I);  When  for  the  Sole  Benefit  of  the  Bailee  (ch.  VII, 
Part  I) ;  Liability  of  Bailor  and  Bailee  when  Bailment  for 
Benefit  of  Both;  Locatio  Rei  Bailments;  Locatio  Operis. 
BAILMENTS  FOR  SOLE  BENEFIT  OF  BAILOR  (see  Index,  Bailments, 

Ordinary). 
BAILMENTS  FOR  SOLE  BENEFIT  OF  BAILEE  (see  Index,  Bailments, 

Ordinary). 
BAILMENTS  FOR  THE  BENEFIT  OF  BOTH  BAILOR  AND  BAILEE 

(see  Index,  Bailments,  Ordinary). 
BENEFIT  (see  Bailments,  Ordinary). 
BILL  OF  LADING  — 

as  the  subject  of  a  pledge,  discussed,  253. 
delivery  b}-  pledgor,  254. 
indorsement  in  blank  sufficient,  254. 
mere  delivery  of  bill  held  enough,  255. 
with  draft  attached.  256,  461. 
how  far  bill  negotiable,  257,  459. 
bo7ia  fide  holders  of.  who  are,  258. 
rights  of,  259. 

obtained  from  one  apparently  owner,  260. 
see  CosiMON  Carriers  of  Goods. 
bill  of  lading  as  proof,  462. 
bill  both  a  contract  and  receipt,  462. 
as  a  receipt  may  be  explained  and  modified,  463. 

the  bill  in  the  hands  of  innocent  consignee  who  has  paid  draft,  462, 463. 
bill  of  lading,  description  and  office  of,  458. 
carrier's  liability  for  goods  stated  in  the  bill,  463. 

see  Common  Carriers  of   Goods  (ch,  V,  Part  V);  Pledge  and 
Pawn;  Non-negotiable  Instruments,  253,  254,  256,  257,  258. 
BOARDING-HOUSE  KEEPERS,  336,  387  (see  Innkeepers). 
BROKER  — 

stocks  held  on  margins,  purchased  by  broker,  320. 
see  Pledge  and  Pawn,  320,  321,  322. 
BURDEN  OF  PROOF  (see  Actions;  Evidence). 
CANAL  COMPANIES  — 

are  not  coinmon  carriers,  when,  427. 
CARRIERS  (Ch.  I,  Part  V)  — 
definition  of  a  carrier,  392 
history  of  carriers.  393. 
importance  and  scope  of  the  subject,  394 
carriers  strictly  a  bailment  relation,  395. 
generally  of  mutual-benefit  class,  395. 
may  be  gratuitous  carriers,  395. 

carriers  of  two  kinds:  private  and  public  or  common,  396i 
also  carriers  by  water  and  carriers  by  land,  396. 
Private  or  Special  Carriers,  397. 


INDEX.  753 

References  are  to  sections. 

CARRIERS  (continued)  — 

do  not  belong  to  exceptional  bailment  class,  397. 

duties  and  liabilities  of  private  or  special  carriers,  398. 

two  kinds:  carriers  for  hire  and  gratuitous,  398. 

carriage  of  goods  or  passengers  for  hire,  399. 

ordinary  diligence  required  if  for  hire,  399. 

may  limit  liability  if  free  from  fraud,  401. 

increasing  or  diminishing  liability,  400. 

excused  from  liability,  when,  402. 

act  of  God,  public  enemy,  inevitable  accident,  robbery,  burglary, 

larceny,  excuses  private  carrier,  402. 
compensation  and  lien  of  private  carrier,  403. 
may  regulate  compensation  by  contract,  403, 
has  no  lien  upon  goods  carried,  404. 
private  or  special  carrier  without  hire,  405. 
liable  for  gross  negligence,  405. 
Public  or  Common  Carriers  (Ch.  II,  Part  V)  — 
exceptional  bailees,  30. 
mutual-benefit  bailments,  114. 
locatio  operis  mercium  vehendarum,  134. 
when  a  warehouseman,  182,  183. 
definition  of  a  common  carrier,  406. 
first  essential  requisite  of,  407. 
must  undertake  to  carry  for  all,  407. 
cannot  select  customers,  407. 
second  essential:  if  refuses,  action  will  lie,  408. 
the  true  test,  409. 

may  limit  employment  to  certain  kind  of  property,  410. 
as  freight  and  passenger  or  express  matter,  etc.,  410. 
third  essential:  carriage  must  be  for  hire,  411. 
common  carriers  by  water,  412. 
who  are  common  carriers,  413. 
tugs  and  tow  boats,  414. 
are  they  common  carriers,  415. 
cases  holding  affirmative  and  negative,  415. 
ferry  boats,  416. 
Common  Carriers  by  Land,  417. 
hackmen  and  omnibusmen,  418. 
truckmen,  cartmen,  owners  of  wagons,  419. 
street-car  companies,  420. 

express  companies,  fast-freight  lines,  dispatch  companies,  421,  422. 
transfer  companies,  423. 
baggage-delivery  companies,  423. 
railroad  companies,  424. 
receivers  and  trustees,  425. 

not  all  railroad  companies  common  carriers,  426. 
who  are  not  common  carriers,  427, 
warehousemen  and  forwarding  agents  not,  427. 
48 


754  INDEX. 

References  are  to  sections. 

CARRIERS  (continued)  — 

sleeping-car  companies.  427. 

mail  contractors.  427. 

canal  companies  to  certain  extent,  not,  427. 
Caeriers  of  Goods  —  Some  Essentials  Fixing  Liability  (Ch.  Ill, 
Part  V). 

some  presumptions,  428. 

certain  facts  must  be  proven  to  fix  liability,  429. 

delivery  of  property  for  transportation,  430. 

delivery  a  primary  essential,  430. 

surrendering  the  entire  control  of  goods,  430. 

delivery  for  immediate  shipment,  430. 

when  delivered  and  received  for  immediate  shipment  liability  com- 
mences, 431. 

when  liability  commences,  431. 

when  goods  really  in  transit,  431. 

carrier  may  by  reasonable  regulations  fix  place  of  delivery  for  shi|>- 
ment,  431. 

what  not  a  delivery,  431. 

leaving  on  platform  or  dock,  or  along  road  in  an  unusual  place,  not 
a  delivery,  431. 

usage  and  custom  as  to  delivery,  432. 

notice  of  goods  delivered,  effect  of,  483. 

time  of  delivery,  434, 

by  whom  must  be  made  and  to  whom,  435,  436. 

apparent  authority  generally  sufficient,  437. 

facts  must  be  clear  showing  such  authority,  437. 

delivery  must  be  to  carrier  or  to  one  having  actual  or  apparent  au- 
thority, 437. 

agents  of  carrier  authorized  to  receive,  438. 

several  kinds  mentioned,  438. 

constructive  delivery  of  goods,  439. 
custom  of  carrier  may  govern,  439. 

rules  permitting  constructive  delivery  must  be  applied  with 
great  caution,  440. 
Fixing  the  Liability  of  the  Carrier  (Ch.  IV,  Part  V). 

the  object  of  the  chapter,  441. 

what  must  the  carrier  receive  and  carry,  442L 

limitation  of  general  rule,  442. 

line  or  kind  of  business  fixes  obligation  to  receive  and  carry,  443. 

reasonable  rules  and  regulations,  may  make,  443. 

as  to  how  goods  shall  be  packed,  443. 

some  legal  excuses  for  refusing  to  receive  and  carry,  444* 

may  fix  time  and  place  for  receiving,  445. 

excuse  that  have  no  facilities  for  carrying  goods,  446. 

to  what  extent  must  furnish  facilities,  446. 

extraordinary  occasions,  press  of  business,  447. 

ordinary  requirements,  must  meet,  447. 


INDEX.  755 

Beferences  are  to  sections. 

CARRIERS  (continued)  — 

cannot  arbitrarily  refuse  to  receive  and  ship,  448. 
enforcing  the  receiving  of  goods  for  shipment,  449. 
acceptance  by  the  carrier,  450. 
veiien  delivery  and  acceptance  complete,  451. 
bill  of  lading  receipt  not  requisite  to  bind  carrier,  453. 
action  for  refusal  to  accept  and  ship,  453. 
as  to  tender  or  payment  of  freight  before  action,  454. 
who  may  bring  the  action,  455. 
liability  for  refusing  to  receive  and  ship,  456. 
duty  to  provide  proper  vehicles  for  the  shipment,  457. 
what  would  be  determined  proper  vehicle,  457. 
Fixing  the  Liability  of  Carrier  —  The  Bill  of  Lading  (Ch.  V, 
Part  V). 
the  bill  of  lading,  description  and  office  of,  458. 
negotiability  of  bill  of  lading,  459. 
consignor  may  consign  goods  to  himself,  460. 
bill  of  lading  with  draft  attached,  461. 
copy  of  bill  of  lading  and  draft,  461. 
bill  of  lading  as  proof,  462. 
bill  both  a  contract  and  a  receipt,  462. 

as  far  as  it  is  a  receipt  may  be  explained  and  modified,  463. 
where  shipper  obtains  bill  but  really  fraudulent  on  shipper's  part, 

no  goods  delivered,  462. 
such  bill  in  hands  of  innocent  consignee  who  has  paid  draft,  is 

carrier  liable,  462. 
authorities  not  harmonious,  463. 
some  courts  hold  carrier  estopped  frem  denying  contents  of  bill  of 

lading,  463. 
that  carrier  liable  for  goods  stated  in  bill  of  lading,  463. 
weight,  condition,  contents,  value,  conclusiveness  of  bill  as  to,  464. 
who  may  issue  bill  for  carrier,  465. 
Liability  and  Limitations  Upon  the  Liability  (Ch.  VI,  Part  V). 

liability  of  the  common  carrier,  466. 

is  at  common  law  that  of  an  insurer,  466. 

limitations  at  common  law,  466. 

reasons  for  liability,  467. 

inanimate  and  animate  freight,  468. 

extent  of  liability  affected  by  kind  of  freight,  468. 
act  of  God,  when  loss  or  injury  result  of,  469. 

definition  of  act  of  God,  55,  469. 

will  not  excuse  carrier  from  all  care,  470.    " 

duty  to  make  loss  as  small  as  possible,  470. 

ordinary  care  required  to  protect  goods  injured  by,  470. 

act  of  God  must  be  conclusive  and  proximate  cause,  471. 

act  of  God,  what  will  and  what  will  not  excuse  —  summary, 
472. 

act  of  God ;  burden  of  proof,  473* 


756  INDEX. 

References  are  to  sections. 

CAREIERS  (continued)  — 

public  enemy,  defined,  474. 

diligence  required  of  carrier  in  such  case,  475. 
diligence  required,  even  though  property  injured,  476. 
strikers,  rioters  and  robbers  not  the  public  enemy,  477. 
Where  the  Liability  Arises  from  Loss  or  Injury  the  Result  of 
THE  Act  of  the  Shipper. 

reason  of  the  liability  of  the  carrier.  478. 

contributory  negligence,  applies.  479. 

improperly  marking  goods  by  consignor,  480. 

improperly  packing  or  loading  goods,  481. 

neglect  of  shipper  to  disclose  contents  or  value,  483. 

fraudulent,  not  to  disclose  in  some  cases.  483. 

intermeddling  on  part  of  shipper,  483. 

negligence  of  the  carrier,  484. 
Where   the   Loss   or   Injury    Caused  by   Inherent  Nature  op 
Property. 

the  exception,  485. 

animate  freight,  486. 
Carriers  of  Live-stock,  487-491. 

the  exception  applies,  487. 

Michigan  rule,  not  common  carriers,  488. 

duty  of  carrier  of  live-stock,  489. 

facilities  for  shipping  live-stock  must  be  furnished,  489. 

feed  and  water,  489. 

running  of  train  and  duties  incident,  489. 

United  States  statute  as  to  duties  of  carrier,  490. 

shipper  must  deal  fairly  with  carrier,  491. 

injury  resulting  from  neglect  to  so  deal,  491. 
Where  the  Loss  or  Injury  Result  of  Exercise  of  Public  Au- 
thority. 

reason  for  exception,  493. 
When  Loss  or  Injury  Result  of  Deviation  or  Delay  (Ch.  VII. 
Part  V). 

implied  undertaking  of  carrier,  493. 

to  transport  within  reasonable  time,  493-496. 

to  transport  by  his  own  route,  493. 

bound  to  know  when  he  receives  goods  that  he  can  ship  them,  493, 

cannot  receive  and  hold  in  warehouse,  493. 

if  press  of  business,  may  be  excused,  etc.,  493. 

notice  to  the  carrier,  494. 

if  carrier  has  notice  goods  are  to  fill  contract,  494. 

when  not  governed  by  rule  that  damage  too  remote,  494. 

if  property  understood  to  be  shipped  for  immediate  use,  494 

unreasonable  delay,  what,  495. 

reasonable  diligence,  496. 

delay  from  deviation  from  route,  497. 

such  deviation  act  of  God,  public  enemy,  498. 


INDEX.  757 

References  are  to  sections. 

CARRIERS  (continued)  — 

duty  often  to  deviate  from  course,  499. 

strikers,  deviation  for,  500. 

perishable  goods,  may  discriminate  for,  501. 

goods  after  disaster,  duty  of  carrier,  502. 
Contract  Regulating  the  Transportation    of  Goods  (Ch.  VIII, 
Part  V). 
.  object  of  the  chapter,  503. 

imposing  obligations  upon  carrier,  504 

act  of  God  and  other  causes  not  excuse  for  fulfilling  contract,  when, 
504,  505. 

contract  by  certain  route,  must  so  carr}',  503. 

if  loss  by  another  route,  carrier  liable  when,  505. 

contract  to  deliver  in  certain  time,  506. 

contract  to  carry  by  water  not  answered  by  carriage  by  land,  507. 

when  carriage  is  fault  of  shipper,  508. 
Contract  Limiting  the  Liability  of  the  Carrier,  509. 

cannot  limit  liability  when  result  of  negligence  of  carrier  or  serv- 
ants, 510. 

rule  in  different  states  as  to  limiting  liability,  511. 

limiting  as  to  amount,  512. 

consideration  of  contract  for  limiting  liability,  513. 

option  of  shipper  to  accept  contract  limiting,  514. 

shipper  may  insist  that  carrier's  liability  be  that  of  an  insurer,  514i 

contract  must  be  reasonable,  fair,  without  fraud,  515. 

contract  limiting,  how  made,  516. 

limiting  time  for  presenting  claims,  517. 

construction  of  contract  limiting  liabilitj',  519. 

contract  implied  from  notice,  520. 

limiting  by  general  notice,  520,  521. 

notice  written  or  printed  on  bills  of  lading,  522. 

representations  of  the  shipper.  523. 

when  limitation  of  contract  inures  to  connecting  carrier,  524. 

English  rule,  limitation  by  notice,  525.  ' 

act  of  pai-liament  regulating  as  to  notice,  etc.,  525. 

the  result  of  the  act,  526. 

carrier  liable  only  over  own  line  except  contract  otherwise,  527. 

if  no  contract  for  liability  beyond  own  line,  528. 

English  rule,  529. 

if  goods  directed  beyond  line,  contract  implied,  529. 

decisions  of  states  not  harmonious,  530. 

some  states  holding  English  rule,  530. 

conditions,  etc.,  through  shipment  implied,  531. 
Connecting  Carriers.  Who  Are,  532. 

relation  between  shipper,  initial  and  connecting  carriers,  533. 

duty  of  connecting  carrier,  534. 

authority  to  bind  connecting  carrier,  535. 

against  which  carrier  shall  it  be  brought,  586. 


758  ixDEx. 

References  are  to  sections. 

CAERIERS  (continued)  — 

Compensation  —  Discbimination  —  Lien  (Ch.  X,  Part  V). 

compensation  of  carrier,  537. 

amount  depends  upon  goods  delivered,  538. 

if  prevented  from  delivery  by  act  of  God,  538. 

carrier's  special  security  in  and  right  to  possession  of,  539. 

carrier  may  protect  his  possession,  5i0. 

carrier  may  insure  the  goods,  541. 

when  can  sell  the  goods,  542. 

when  goods  perishable  and  cannot  carry  through,  542, 

in  case  of  disaster,  542. 

amount  of  compensation  can  charge,  543. 

discrimination  in  charges,  543. 

right  to  collect  advances  made  to  connecting  carriers,  544 

who  is  liable  to  carrier  for  freight,  545. 

when  only  carried  part  of  the  distance,  546. 

pro  rata  itineris,  546. 
Discrimination. 

law  forbidding,  applies  to  all  branches,  548. 

relates  to  facilities  for  shipping,  549. 

discrimination  that  is  forbidden,  550. 

regulation  by  statute  of  state,  551. 

interstate  commerce  act,  552. 
The  Lien  of  the  Carrier. 

similar  to  the  lien  of  bailee,  553. 

when  does  the  lien  attach,  554. 

when  shipment  made  by  one  without  authority,  547,  555. 

for  what  charges  lien  attaches,  556. 

contract  for  shipment  must  be  fulfilled,  557. 

how  lost,  satisfied  or  discharged,  558. 

lien  satisfied,  559. 

lien  discharged,  560. 
Termination  of  Carrier's  Liability  —  Liability   as  Warehouse- 
man, How  Discharged  (Ch.  XI,  Part  V). 

delivery  of  goods  to  consignee,  561. 

may  demand  bill  of  lading  before  delivery  of  goods,  563. 

rules  as  to  delivery  applicable  to  all  carriers,  563. 

requirements  of  carrier  on  arrival  of  goods,  564. 
Express  Companies. 

requirements  as  to  delivery,  565. 

personal  delivery,  when,  565. 

express  company,  warehouseman  when,  566. 

liability  as  warehouseman,  567. 

duty  of  when  goods  refused  by  consignee,  568. 

should  notify  consignee  of  refusal,  568 

goods  sent  C.  O.  D.,  569. 

when  consignee  refuses  to  receive,  570. 

right  of  consignee  to  inspect  goods,  571. 

carrier  may  assist  in  preventing  fraud  of  consignor,  572. 


INDEX.  769 

References  are  to  sections. 

CARRIERS  (continued)  — 
Carriers  by  Water. 

termination  of  liability,  573. 

carrier  must  be  diligent  in  giving  notice  to  consignee,  574 

must  provide  suitable  place  for  lauding  and  caring  for  goods,  575. 

actual  notice  must  be  given,  576. 

notice  must  be  to  receive  goods  at  proper  time,  576. 

contract,  usage,  course  of  dealing,  577,  578. 

consignee  cannot  prolong  liability  by  inattention  to  notice,  579. 

must  attend  to  notice  in  reasonable  time,  579. 
Carriers  by  Railroad. 

termination  of  liability,  580. 

must  deliver  to  consignee  or  person  entitled  to  receive,  580. 

liability  for  misdelivery,  580. 

three  distinct  views  as  to  termination  of  liability,  581. 

(1)  The  so-called  Massachusetts  rule,  581,  582. 

(2)  The  New  Hampshire  rule,  583. 

(3)  The  rule  requiring  notice  to  consignee,  584. 
what  vpill  excuse  delivery,  585. 

the  causes  that  excuse  liability,  585. 
Stoppage  in  Transitu,  586. 

law  favors  right  of  stoppage  in  transitu,  587. 

some  requisites  to  exercising  i-ights,  588. 

how  exercised,  notice,  to  whom,  589. 

how  can  the  right  be  defeated,  590. 

lien  of  the  carrier  for  freight  has  priority,  591. 

duty  of  carrier  when  notice  of  stoppage  in  transitu,  592. 

when  carrier's  control  and  liability  terminates,  592. 
Carriers  of  Passengers  (Ch.  I,  Part  VI). 

the  relation,  593. 

who  are  passengers,  594. 

definition,  594. 

status  fixed  by  intention,  595. 

not  essential  that  persons  should  be  in  carrier's  vehicle,  596. 

passenger  while  at  station,  596. 

when  entering  vehicle,  596. 

persons  waiting  in  stations  for  arrival  of  passenger,  596. 

express  messengers  and  mail  agents,  597. 

mail  agents  are  passengers,  598. 

drovers  when  passengers,  599. 

workmen  and  employees,  600. 

requisite  that  carrier  must  receive  person  as  a  passenger,  601. 

reasonable  regulations,  persons  violating,  603. 

violation  of  regulations  as  to  boarding  trains,  etc.,  602. 

when  violation  of  regulation  excuses  liability,  002. 

payment  of  fare  not  a  requisite  to  become  a  passenger,  603L 

fraud  on  carrier  as  to  fare,  604. 

termination  of  relation,  605. 


T60  INDEX, 

References  are  to  sections. 

CARRIERS  (continued)  — 

passenger  on  street-car,  606. 
when  becomes  a  passenger,  street-car,  606. 
wlien  ceases  to  be  a  passenger,  street-car,  608. 
reasonable  regulations,  street-car,  607. 
passenger  must  occupy  usual  place  provided,  608. 
Who  Must  the  Carrier  Accept  and  Carry  —  Certain  Duties  of 
Carriers  and  Passengers  (Ch.  II,  Part  VI). 
carriers  quasi-public  servants,  609. 
carrier  bound  to  receive  and  carry  all  who  apply,  609. 
exceptions  to  the  general  rule,  610. 
carrier  must  protect  passengers,  611. 
right  to  separate  passengers  as  to  sex,  613. 
separation  of  races  as  a  reasonable  regulation,  613. 
constitutional  amendment,  613. 
interstate  commerce  commission,  613,  note, 
civil  rights  cases.  613. 
•  certain  duties  incumbent  on  carrier,  implied  obligation,  614 
duty  as  to  vehicle,  machinery,  roadway,  track,  etc.,  615. 
as  to  stational  facilities,  616. 
as  to  running  and  managing  trains,  617 
passenger's  duty,  618. 
Passenger  Carriers  Liability  (Ch.  Ill,  Part  VI). 
the  purpose  of  the  chapter,  619. 
general  pi-inciples  governing  the  liability: 

the  basis  of  the  liability,  620. 

failure  of  carrier  to  do  his  dutj-,  basis,  620. 

diligence  of  carrier  in  employment  of  servants.  621. 

safe  and  sufficient  means  of  transportation,  622. 
passenger  elevators,  628. 

passenger  carriers  must  adopt  approved  machinery,  624 

latent  defects  in,  liability  affected  by,  how,  625. 

English  rules  as  to,  626. 

defects  discoverable  by  manufacturers.  627. 
liability  growing  out  of  duty  to  passengers  while  in  transit: 

the  degree  of  care  required,  628. 

depots,   waiting-rooms,  approaches  and  exits  from   premises 
and  vehicles,  629,  630. 

overloading  and  overcrowding  vehicles,  631. 

abuse  of  passengers,  liability  of  carrier  for,  632. 

fares,  tickets,  contract  for  carriage,  633. 

conditions  printed  on  the  ticket,  633. 

consideration  for  such  agreement,  633. 

excursion  tickets,  conditions  in,  etc..  633. 

acceptance  of  such  ticket,  accepts  conditions,  633. 

when  passenger  violates  conditions,  633. 

when  the  carrier  or  agent  is  at  fault,  634 

when  passengers'  violation  attributable  to  carrier,  634 


INDEX,  761 

References  are  to  sections, 

CARRIERS  (continued)  — 

exhibition  or  surrender  of  tickets,  635. 

when  ticket  is  lost  or  mislaid,  636, 

reasonable  time  to  find  ticket,  636. 

stop-over  tickets,  time  limit,  train  limit,  687. 

continuous  journey,  the  presumption,  637. 

tickets  over  connecting  lines,  638. 

may  stop  over  at  termination  of  each  line,  when,  688. 

time  within  which  must  use  the  ticket,  638, 

passenger  delayed  by  wreck  or  fault  of  carrier,  639, 

tickets,  passes,  etc.,  fraudulently  obtained  or  used,  640. 
Sleeping-car  Companies,  641. 

as  to  becoming  liable  for  carriage  of  passengers,  641. 
not  liable  as  common  carriers,  641. 
their  liability,  what  is  it,  641. 
not  liable  as  innkeeper,  641,  642. 
baggage,  liability  fox*,  641, 

ejection  of  passengers  and  intruders  from  vehicle  of  carrier,  the 
right  of,  the  manner  of,  by  whom,  643. 

numerous  causes  for,  644. 

can  only  be  expelled  for  misconduct,  644. 

refusal  to  produce  ticket.  644. 

drunkenness,  disorderly  conduct,  offenses,  crimes  and  misde- 
meanors, 644. 

father  refusing  to  pay  for  child,  may  eject  both,  644, 

as  to  passengers  relying  upon  statements  of  servants,  645. 

tendering  fare  to  avoid  ejection,  646. 

when  tender  of  fare  will  not  avoid.  646. 

the  manner  of  ejecting  the  passenger,  647. 

no  more  force  than  necessary,  647. 

must  take  into  account  condition  of  passenger,  648. 
When  Carrier  Excused  from  Liability. 
the  act  of  God,  the  public  enemy,  649,  650. 
contributory  negligence.  651, 
strangers,  trespassers,  intruders,  652, 
carrier  must  exercise  certain  care  for.  652. 
failure  to  warn  passenger  of  danger,  653. 
when  question  of  fact  for  jury  or  law  for  court,  654 
whether  question  of  law  or  fact,  655,  656. 
passenger  sometimes  excused  for  negligence,  657. 
carrier's  failure  to  carry  within  stipulated  time,  658. 
Limitations  of  Liability  (Ch,  IV,  Part  VI), 

three  classes  of  holdings  as  to  right  to  limit,  659, 

(1)  cannot  where  injury  result  of  negligence  of  carrier  or  serv- 

ants, 660. 

(2)  can  limit  even  though  injury  result  of  such  negligence,  661. 

(3)  can  limit  for  negligence,  but  not  for  gross  negligence,  663. 
weight  of  authority  as  to  right  to  limit  liability,  663, 


7G2  INDEX. 

References  are  to  sections. 

CARRIERS  (continued)  — 

free  passes,  limiting  liability,  664 

if  pass  issued  for  a  consideration,  664. 

where  pass  is  gratuitous,  664. 

where  limitation  signed  by  recipient  of.  664. 

limitation  growing  out  of  that  which  is  incident  to  the  car- 
riage, 665. 
one  riding  on  freight  train  assumes  certain  risk,  665. 

see  Baggage,  or  the  Passenger's  Effects,  Ch.  V,  Part  rv» 
CHATTEL  MORTGAGE  — 
priority  over  lien,  165. 
pledge  distinguished  from,  273. 
CLASSIFICATION  OF  BAILMENTS,  26. 
Roman  classification,  26. 
chart  showing  classification,  31. 

chart  classifying  and  showing  duties  and  liabilities,  37. 
COLLATERAL  SECURITY  (see  Pledge  or  Pawn,  230,  231,  236,  241,  243, 

244,  245,  246,  247,  248,  249,  250,  273). 
COLLECT  ON  DELIVERY,  569,  570,  571,  572  (see  Goods  Sent  C.  O.  D.,  569; 

Carriers  of  Goods). 
COMMODATUM,  26,  28  (see  Bailments,  Ordinary). 
COMMON-LAW  FORECLOSURE  OF  PLEDGE,  302. 
COMPENSATION  — 
bailee's  right  to,  65. 
bailee's  lien  for,  66,  68. 
possession  of  property  essential  to.  70. 
finder  of  property  may  have,  71. 
extinction  of  lien,  72. 
how  waived,  73. 

when  possession  claimed  for  reason  inconsistent  with,  73. 
by  parting  with  possession  of  property,  73. 
cannot  be  revived  if  lost,  74. 
enforcement  of  bailee's  lien,  76. 
enforcement  and  foreclosure,  76. 
bailor's  right  to,  75. 
in  locatio  bailments,  161,  162. 
qiiantiun  meruit,  147. 
if  failure  fault  of  bailor,  148. 
compensation  and  lien  of  innkeeper,  375,  384. 
compensation  and  lien  of  carrier,  537,  560. 

see  Passenger  Carriers,  603:  Ejecting  Passenger,  644;  Tender- 
ing Fare  to  Avoid  Ejection,  646;  Baggage,  Pay  for  Excess, 
675. 
fare  paid,  consideration  for  carriage  of,  675. 
lien  of  innkeeper  lost  or  waived,  385. 
lien  lost,  386,  387. 
lien  of  warehousemen  and  custodicB  bailees,  215. 


INDEX.  763 

Eeferences  are  to  sections. 

COMPENSATION  (continued)  — 
lien  of  agisters,  163,  164. 
when  chattel  mortgage  takes  precedence  of,  165. 

see  Bailments,  Ordinary;  Innkeepers;  Caeriees. 
CONNECTING  CARRIERS  — 
of  goods,  532.  533,  534,  535,  536. 
of  passengers,  637,  638,  639,  640. 
CONSIGNMENT  — GOODS  ON  A  BAILMENT.    See  Common  Carriers 

OF  Goods,  430,  431,  440;  Bill  of  Lading  (Ch.  V,  Part  V). 
CONTRACT  (see  Bailment,  Ordinary,  34,  45)  — 

bailee  cannot  contract  against  his  own  fraud  or  gross  negligence,  60. 

bailment  a  contract  relation,  93. 

pledge  and  pawn,  216,  220. 

innkeeper's  limitation  of  liability,  359,  372,  374. 

carriers,  increasing  and  diminishing  liability  by  contract,  400,  404,  442, 

509,  512. 
consideration  of  contract  for  limiting,  513. 
must  be  reasonable  and  fair,  without  fraud,  515. 
contract  limiting,  liow  made,  516. 
for  limiting  time  for  presenting  claims,  517. 
construction  of  contract  limiting,  519. 
contract  implied  from  notice,  520. 
as  to  limiting  by  general  notice,  520,  521. 
notice  written  or  printed  on  bills  of  lading,  523. 
no  contract  for  liability  beyond  own  line,  528. 
English  rule,  529. 

decisions  of  states  not  harmonious,  530. 
conditions,  etc.,  for  through  shipment  implied,  531. 
contract  for  shipment  must  be  fulfilled,  557. 

carriers  by  water,  contract  as  to  delivering  goods,  usage,  course  of 
dealing,  577,  578. 
see  Passenger  Carriers;   Contract  Limiting  Liability;   Pas- 
senger Riding  on  Pass,  644. 
as  to  time  agreed  to  complete  journey,  658. 
limitations  of  liability,  659,  663. 
baggage,  implied  contract  to  carry,  675. 
if  free  pass,  no  consideration,  680. 

see  Carriers  of  Goods;  Innkeepers. 
CONTRACTS    REGULATING    THE    TRANSPORTATION    OF   GOODS 

(Ch.  VIII,  Part  V),  503,  536.    See  Carriers  of  Goods. 
CONTRIBUTORY    NEGLIGENCE.     See    Negligence    or    Diligence; 
Pledge  OR  Pawn;  Innkeepers;  Carriers  of  Goods;  Carriers  of 
Passengers;  Carriers  of  Baggage;  Actions;  Negligence;  Con- 
tribution. 
CONVERSION,  64. 

what  amounts  to,  64 

when  assignment  by  bailee  considered  as,  131. 

bailor  may  bring  action  for,  on  failure  of  bailee  to  redeliver,  61. 


764  INDEX. 

References  are  to  sections. 

CONVERSION  (continued)  — 

what  constitutes,  127,  128. 

assertion  of  dominion,  etc.,  127,  128. 

as  driving  horse  beyond  place  hired  for,  127. 

see  Bailments,  Okdinary;    Locatio   Operis;    Warehousemen; 
Storage-house  Keepers;  Safety  and  Deposit  Vaults. 
CORPORATIONS  — 

may  become  bailor  or  bailee,  16. 

act  through  agents,  16. 

the  act  of  the  agent  is  ultra  vireft,  16. 

property  received  though  agent's  act  is  unauthorized,  16. 
see  Bailments,  Ordinary;  Pledge  or  Pawn. 
CRIMINAL  — 

liability  of  bailee,  213. 
CUSTODY  BAILMENTS.    See  Bailments.  Ordinary;  Locatio  Custodi.^ 

Bailments  (Ch.  XI,  Part  I,  sees.  167,  206). 
CUSTOM  (see  Bailment;  Pledge  and  Pawn)  — 

custom,  usage,  etc.,  stock  brokers,  331. 

foreclosure  of  stocks  on  margins,  822.     See  Contracts. 
DAMAGES.    See  Actions. 

DEATH.    See  Termination  of  Bailment  by,  83. 

DELIVERY  (see  Bailments,  13.  19,  69:  Pledge  and  Pawn,  237o,  238,  239. 
240,  247,  262,  263,  265,  270,  271, 328;  Innkeepers.  360,  361, 362;  Carriers 
OF  Goods,  430.  431,  432,  433,  434,  435,  436,  437,  438)  — 

delivery  of  goods,  constructive,  19,  439. 

custom  of  carrier  as  to,  governs,  439. 

rules  permitting  constructive,  applied  with  caution,  440. 

delivery  of  goods  to  consignee,  561. 

carrier  may  demand  bill  of  lading  before  such  delivery,  562. 

rules  as  to  delivery  applicable  to  all  carriers,  563. 

required  by  carrier  on  arrival  of  goods,  564. 

express  companies,  requirements  as  to  delivery,  565. 

C.  O.  D.  goods.  569. 

carrier  by  water.  573,  579. 

carrier  by  railroad,  must  deliver  to  consignee,  580. 

liability  for  misdelivery,  580. 

requirements  as  to  delivery.  581,  585. 

baggage,  681,  682,  683,  686. 

steamship  companies,  baggage,  686,  688i 
DEPOSITS  — 

depositum,  87. 

use  of  deposit.  88. 

special,  not  general,  89. 

gua.s-?-deposits.  90.   . 

distinction  between  depositum  and  mandatum,  92, 

safe-deposit  and  trust  companies,  196,  197. 

nature  of  and  diligence  required,  198. 

general  deposits  in  banks,  51.  89. 

as  to  diligence  required,  51,  92. 


INDEX.  765 

References  are  to  sections. 

DEPOSITARY,  87,  88,  94.  99. 

DEPOTS.    See  Passenger  Carriers,  616.  629,  630. 

DEVIATION  AND  DELAY  (Ch.  VII,  Part  V;.    See  Carriers  of  Goods, 

493,  503. 
DILIGENCE  — 

bailments,  degree  of,  required,  36. 

what  is  diligence,  38. 

definition  generally  accepted,  39. 

each  case  ruled  by  its  own  circumstances,  40. 

high  diligence,  gross  negligence,  41. 

when  diligence  and  negligence  questions  of  law,  4^ 

classification  of  conditions  and  circumstances,  43. 

in  bailments  for  sole  benefit  of  bailor,  94* 

for  sole  benefit  of  bailee,  103. 

in  mutual  bailments,  130,  142. 

locatio  rei  bailments,  130. 

locatio  operis  bailments,  155,  156. 

what  is  ordinary,  for  skilled  workmen,  157,  158. 

locatio  custodice  bailments,  diligence  required,  198,  199,  200 

diligence  must  keep  pace  with  improvements,  203. 

proof  of,  204. 

does  the  burden  of  proof  shift,  205,  206. 

pledge  and  pawn,  diligence,  275,  292,  316. 

innkeepers,  352,  354. 

postal  service,  390. 

carriers,  private  carriers,  399. 

private  carriers,  gratuitous,  405. 

public  or  common  carriers,  396,  466,  475,  476. 

carriers  of  passengers,  614,  617,  620. 
DISORDERLY  PERSONS.    See  Innkeepers,  343,  344,  348;  Carriers  of 

Passengers,  644,  647,  648. 
DISCRIMINATION.    See  Innkeepers,  343;  Carriers  op  Goods.  442,  443, 

444:  Carriers  of  Passengers,  609,  610,  611,  612,  613. 
DROVERS  — 

riding  on  pass,  660. 

contract  with  carrier  limiting  liability,  effect  of,  C60. 

a  consideration  for  pass  to  carrier,  664. 
see  Carriers  of  Passengers,  599. 
DRUNKENNESS  — 

innkeepers,  344,  348. 

carriers  of  passengers  may  eject  for,  644. 

duty  of  carrier  toward,  647,  648. 
EJECTION  — 

passenger  carriers,  the  rigiit,  the  cause,  the  manner,  by  whom,  643. 

numerous  causes,  644. 

misconduct,  refusal  to  pay  fare,  produce  ticket,  drunkenness,  disor- 
derly conduct,  committing  offenses,  crimes  or  misdemeanors  on  other 
passengers,  gamblers,  jiersons  affected  with  disease,  refusing  to  com- 
ply with  reasonable  rules  and  regulations,  644. 


76  G  INDEX. 


References  are  to  sections. 


EJECTION  (continued)  — 

passenger's  reliance  upon  servants  and  agents,  645. 

tendering  fare  to  avoid  ejection,  646. 

wlien  carrier  may  refuse  pay  or  tender  of  fare,  646. 

the  manner  of  ejecting,  647. 

no  more  fare  than  necessary,  647. 
ondition  of  the  passenger  must  be  taken  into  account,  648. 

when  parent  must  pay  fare  for,  644. 
EQUITY  — 

foreclosure  of  pledge  in,  310,  311. 

proceedings  in,  to  enforce  the  receiving  and  shipping  of  freight,  449. 

will  enforce  transfer  of  stock  on  books,  when,  249,  326. 

when  stock  entered  in  books  of  company  as  pledgee's  property,  equity 
will  undo,  326. 

when  pledgee  refuses  to  reconvey  stocks  so  entered,  equity  will  decree 
it,  326. 
EVIDENCE.    See  Actions. 
EXPENSES  — 

bailments,  ordinary;  extraordinary  expense,  when  can  pay,  110,132. 

ordinary  expense,  bailee  must  pay,  110. 

extraordinary,  may  collect  of  bailor,  110. 

extraordinary  expenses,  borrower  not  compelled  to  pay,  112. 

extraordinary  expenses  rendered,  must  pay,  112. 

pledge  and  pawn,  pledgee  must  pay  usual  and  necessary  expenses,  291. 
extraordinary,  pledgor  must  pay,  291. 
pledgee  must  make  usual  and  necessary  repairs,  291. 
unusual  improvements,  pledgor  must  pay,  291. 
EXPRESS  COMPANIES  — 

are  common  carriers,  421. 

expected  to  deliver  consignments  to  consignee  in  person,  or  at  resi- 
dence or  place  of  business,  421,  565. 

until  delivered,  unless  reasonable  excuse,  liable  as  common  carriers,  565. 

as  to  what  effort  company  must  make  to  deliver,  565. 

must  make  reasonable  effort  to  deliver,  565. 

when  company  becomes  warehouseman,  567. 

(1)  when  goods  delivered  not  for  immediate  shipment,  567. 

(2)  when  cannot  for  good  reason  be  delivered  at  destination,  567. 
duty  when  goods  refused  by  consignee,  568. 

should  at  once  notify  consignor,  568. 
goods  sent  C.  O.  D.,  569. 
as  to  payment  for  goods  so  delivered,  569. 
when  company  liable  for,  569. 

when  consignee  fails  to  receive  the  goods,  or  refuses,  570. 
consignee's  right  to  inspect  goods  so  sent,  571. 
company  may  assist  to  prevent  fraud  of  consignor,  572. 
as  where  goods  sent  are  valueless,  company  may  allow  inspection,  573. 
when  collection  made  by  company  and  goods  found  of  no  value,  572. 
EXPRESS  COMPANY'S  RECEIPT,  482. 
shipper  bound  by  stated  value  in,  482. 


y      INDEX.  767 

References  are  to  sections. 

FACTORS  — 

may  be  bailees,  3,  5. 

belong  to  locatio  custodies,  bailments,  189. 

factors  and  commission  merchants  must  exercise  good  faith  and  ordi- 
nary diligence,  189. 
cannot  substitute  other  goods  for  goods  delivered  to  him,  189. 
must  follow  implicitly  directions,  188. 
must  follow  the  general  usage  of  trade,  189. 
see  Storage-house  Keepers,  190,  etc. 
FAST-FREIGHT  LINES,  DISPATCH  COMPANIES,  ETC.— 

are  common  carriers  of  goods,  422. 
FERRIES.    See  Common  Carriers,  416. 
FINDER  — 

may  be  bailor,  105. 
may  have  lien  on  goods  found,  71. 
FORECLOSURE  — 

after  default  pledgee  may  foreclose,  296. 
when  pledge  or  corporeal  property,  801 
several  ways  of  foreclosure,  301. 

when  may  sell  under  power  in  contract  of  pledge,  303. 
when  power  to  sell  implies.  302. 
common-law  foreclosure,  302. 
sale  must  be  public,  302. 
notice  of  sale,  304,  306. 
purchaser  at  sale,  305. 
pledgor  cannot  compel  pledgee  to  sell,  307. 
his  remedy  is  to  redeem,  307. 
as  to  surplus  after  sale,  308. 
statutory  foreclosure,  309. 
in  equity,  310,  311. 

when  property  pledged  negotiable  instruments,  813. 
not  usual  to  sell  at  public  auction,  313. 
English  rule,  314. 

pledgee  must  collect  securities,  315. 
pledgee  must  recover  in  an  action  on,  317. 
securities  liable  to  equities,  317. 
compromise.  318. 
when  pledged  property  consists  of  stocks  and  bonds,  819. 
stocks  held  on  margins  by  corporations,  320. 
as  to  foreclosure  of,  320,  322. 
FRAUD  — 

bailments,  fraud  will  terminate,  80. 
carriers.    See  Bill  of  Lading,  462,  463. 
failure  to  disclose  value  of  goods,  482. 
contract  limiting  liability  of  carriers,  401,  515. 
carrier  of  passengers,  fraud  on  as  to  fare,  604» 
FREIGHT  TRAINS,  665. 
GENERAL  LIENS.    See  Liens. 


708  .  INDEX. 

References  are  to  sections. 

GIFTS  — 

bailment  or  sale,  25. 
GRAIN  — 

stored  in  elevator,  exception  to  rules  required,  redelivery,  19. 

for  that  mixed  with  other  grain  not  evidence  of  sale,  24  and  note. 

see  LocATio  Custodi.e  Bailmexts. 
GRATUITOUS  BAILMENTS,  33  (see  Bailments  for  Sole  Benefit  of 
Bailee.  102,  etc.)  — 
death  of  bailee  terminates,  83. 
for  sole  benefit  of  bailor,  80. 

see  Index,  Bailments. 
GUESTS  (see  Index,  Innkeepers;  Guests.  334.  etc.:  Baggage)  — 
who  are,  334.  335. 
guest  or  boarder,  336,  387. 

personal  presence  of,  not  always  necessary,  338. 
leaving  of  horse  and  vehicle  enough,  338. 
taking  lodgings  only,  may  make  one  a  guest,  339. 
accommodations  furnished  not  necessary  to,  339. 
mere  visitor  not,  340. 
length  of  stay  not  material,  341. 
must  use  inn  for  legitimate  purpose,  343. 
who  must  the  innkeeper  receive,  343. 
limitations  and  exceptions.  344. 
liability  for  refusmg  to  receive,  345. 
when  may  turn  guest  away,  346,  348. 
as  to  loss  of,  innkeeper's  liability,  342-350. 
exceptions  and  limitations  of  liability,  350-358. 
when  property  of  goods  for  sale  or  show,  367. 
limitations  of  liability  of  innkeeper  for  loss  of  property,  372. 

may  limit,  but  not  for  gross  negligence,  372. 

requiring  guest  to  deposit  valuables.  372. 

reasonable  regulations  applicable  to,  372. 

must  compensate  innkeeper,  375. 

lien  upon  property  and  baggage  of,  375.  376. 

when  guest  an  infant,  compensation,  lien,  378. 

when  property  belongs  to  third  person,  379,  380. 

when  guest  an  agent,  381. 

animate  property,  382. 
HACKMEN.     See  Omnibus. 
HACKMEN,  CARTMEN  AND  OWNERS  OF  WAGONS  — 

are  common  carriers,  419. 
HIRE  — 

bailments  for,  114,  120. 
locatio  rei  bailments,  121,  133. 
locatio  operis  bailments,  134,  165. 
locatio  custodice  bailments,  167,  215. 

see  Index,  Bailments. 


INDEX.  T69 

References  are  to  sections. 

HIRE  (continued)  — 

carriers  may  be  gratuitous,  393,  405. 
private  for  hire.  398,  399. 
public  or  common  carriers,  406,  407,  411. 
compensation  of  carrier,  537,  546. 

see  Passenger  Carriers;  Sleeping-car  Companies. 
HOTEL.    See  Innkeepers. 
INFANTS  — 

as  party  to  bailment,  13. 
disability  a  shield,  not  a  sword,  14 
bailed  property  in  possession  of,  must  care  for,  14 
liable  for  tortious  use  of,  14. 
INEVITABLE  ACCIDENT.    See  ACCIDENT,  Inevitable. 
INNKEEPERS  (Ch.  I,  Part  III)  — 
inns,  origin,  history  of,  329. 
innkeepers,  who  are,  330,  331. 
essential  characteristics  of,  332. 
restaurants,  cafes,  are  not  inns,  333. 
sleeping-car  companies  not  innkeepers,  333. 
Guests,  Who  Are,  334  (Gh.  II,  Part  III). 

distance  traveled  immaterial,  335. 

guest  or  boarder,  which,  336. 

length  of  time,  contract  for  rates,  does  not  determine,  837. 

personal  presence  of,  not  always  necessary,  338. 

leaving  of  horse  and  vehicle  enough,  338. 

taking  lodgings  only  may  make  one  a  guest,  339. 

accommodations  furnished  not  necessary  to  render  one  a  guest,  339. 

mere  visitor  not  a  guest,  340. 

length  of  time  one  remains  immaterial,  341. 

must  use  inn  for  legitimate  purposes,  342. 

if  practicing  illegal  pursuits,  not  a  guest,  342. 
Who  Must  Innkeeper  Receive  as  Guest,  343. 

all  who  apply  must  be  received,  general  rule,  343. 

limitation  and  exceptions  to  this  rule,  344. 

may  refuse  to  receive  if  house  is  full,  344. 

disorderly  persons,  may  refuse  to  receive  them,  344 

persons  with  contagious  diseases,  maj'  refuse  to  receive  them,  344 
Liability  for  Refusing  to  Receive  Guest,  345. 

when  may  turn  guest  out,  346. 

when  guest  is  taken  ill  with  contagious  disease,  847. 

when  guest  is  disorderly.  348. 
Liability  of  the  (1)  Innkeeper,  (2)  of  the  Guest  (ch.  HI,  Part  III). 

liabilit}'  of  the  innkeeper,  342. 

several  instances  classified,  349. 

an  extreme  case,  Hulett  v.  Swift,  349. 

extraordinary  liability  because  of  public  policy,  350. 

liability  and  exceptions  analyzed,  351. 

where  loss  by  accidental  fire,  in  no  way  fault  of  innkeeper,  353. 
49 


^ 


770  INDEX. 

References  are  to  sections. 

INNKEEPERS  (continued)  — 

where  loss  occasioned  by  act  of  God  or  public  enemies,  353. 

where  loss  occasioned  by  irresistible  force  without  fault  of  inn- 
keeper, 354 

where  loss  occasioned  by  robbery,  riots,  etc.,  355. 

■where  loss  from  force  from  within,  356. 

where  loss  by  reason  of  inherent  nature  of  property,  357. 

where  loss  because  of  fault  of  guest  or  companion,  358. 
Reasonable  Regulations  of  Inn,  359. 

limitation  of  liability  by,  359. 
What  Property  Innkeeper  Liable  for,  360. 

owner  of  property  must  be  guest  and  property  within  the  inn,  361. 

property  within  the  inn,  362. 

not  necessary  guest  should  bring  property  himself  within  the  inn, 
362. 

when  servant  takes  property  within  or  without  the  inn,  362. 

as  loads  of  grain,  or  property  given  to  hostler,  362. 

theft  by  servant,  363. 

if  pei'son  sustaining  loss  be  boarder  or  a  guest,  364 

if  property  lost  the  property  of  third  person,  365. 

corporation's  property  lost  by  an  agent,  366. 
Exceptions  to  Liability  —  Goods  for  Sale  or  Show,  367. 

liability  for  personal  injury  to  guest,  368. 

defective  or  unsound  premises,  369. 

injuries  from  fire,  liability  for,  370. 

unsanitary  conditions,  unwholesome  food,  371. 
Limiting  Liability,  372. 

may  limit,  but  not  for  gross  negligence,  372. 

may  limit  by  reasonable  regulations,  372. 

as  requiring  guests  to  deposit  valuables,  373. 

by  notice  to  guest,  372. 

must  bring  notice  home  to  guest,  372. 

liable  as  ordinary  bailee,  when,  373. 

liable  as  gratuitous  bailee,  when,  374 
Compensation  and  Lien  of  Innkeeper  (Ch.  IV,  Part  III)  — 

compensation  and  lien,  375. 

to  what  property  lien  attaches,  375. 

the  lien  a  common-law  lien,  376. 

compensation,  amount  of,  377. 

when  guest  an  infant,  compensation,  lien,  378. 

third  person's  property,  when  lien  attaches,  379. 

subject  of  lien,  holdings  discussed,  380. 

when  guest  agent,  servant  of  bailee  or  owner,  381. 

if  in  course  of  business  of  principal  or  bailor,  lien  attaches,  381. 
Animate  Property,  when  lien  attaches,  382. 

when  property  wrongfully  in  possession  of  guest,  383. 

when  property  is  stolen,  lien  cannot  attach  as  against  owner,  383. 

lien  generally  fixed  by  statute,  384 


INDEX.  771 

References  are  to  sections. 

INNKEEPERS  (continued)  — 

Lien  Lost  or  Waived,  How,  385. 

by  tender  to  the  innkeeper  of  amount  due,  385. 
by  placing  the  refusal  to  deliver  on  different  grounds,  385. 
by  agreement  to  give  to  guest  credit,  385. 
by  delivery  of  goods  to  third  party,  385. 
by  wrongful  sale  or  pledge  of  property  by  innkeeper,  385. 
lien  once  lost  cannot  be  revived,  386. 
lien  is  not  extended  to  boarding-house  keeper,  387. 
INSURANCE. 

policy  of  subject  of  pledge,  266. 
delivery  a  requisite,  267. 
mere  promise  to  deliver  not  enough,  267. 
how  delivered,  268. 

by  assignment  of,  entered  on  books  of  company,  268. 
indorsement  in  blank  of  policy  and  delivery,  269. 
carrier  may  insure  the  goods,  541. 

if  lost  may  collect  the  amount  of  insurance,  541. 
all  over  amount  due  carrier  inures  to  owner,  541. 
warehouseman  may  insure  the  property,  177. 
generally  not  bound  to  insure,  177. 
but  ordinary  diligence  might  require  it,  177. 
INTERSTATE  COMMERCE  ACT,  552. 
LIEN  (Bailments)  — 

bailee's  right  to  lien  on  property  bailed,  65. 
agreement  necessary  to  create,  66. 
if  no  statute  or  express  contract,  common-law  lien,  67. 
two  kinds  of  liens,  68. 

(1)  particular  or  specific,  68. 

(2)  general  lien,  68. 

delivery  necessary  to  establishment,  69. 

possession  obtained  without  consent  of  owner  not  suflBcient  to  support, 

69. 
not  necessary  that  delivery  be  actual,  69. 
possession  of  property  an  essential  to,  70. 
finder  of  property  may  have,  71. 
extinction  of  lien,  payment  or  tender  of  debt,  73. 
waiver  of  lien,  73. 

waived    by  placing  refusal  to  deliver  on  grounds   inconsistent 
with,  73. 

by  agreement  to  give  credit,  73. 

by  voluntarily  parting  with  possession  of  property,  73. 

lien  lost  cannot  be  revived,  74 

indorsement  of  lien,  76. 
LIEN  (Innkeeper's)  — 

upon  property'  infra  hospittum,  375. 

on  animals  and  property  of  guest,  375. 

not  only  for  guest's  keep  but  for  keeping  of  animals  or  property,  375. 

lien  attaches  to  exempt  property,  375. 


772  INDEX. 

Eeferences  are  to  sections. 

LIEN,  Innkeeper's  (continued)  — 

property  of  married  women  liable  to,  375. 
the  English  rule,  375. 
the  lien  a  common-law  lien,  376. 
LIEN  (Carrier's)  — 

private  carriers  have  no  lien,  404. 

discussion  as  to  lien  of  private  carrier.  404. 

common  carriers  may  have  lien  similar  to  bailee,  553. 

special,  not  general,  553. 

lien  gives  authority  to  retain  goods  till  charges  paid,  553. 

when  the  lien  attaches,  554. 

■when  shipment  of  goods  by  one  without  authority,  555. 

for  what  chattels  the  lien  attaches,  556. 

carrier's  contract  must  be  fulfilled,  557. 

lien,  how  lost;  satisfied  or  discharged,  558,  559,  560. 

LOCATIO    CUSTODIJE    BAILMENTS  —  WAREHOUSEMEN,    ELEVATOR    MeN, 

Storage-house  Men,  Wharfingers,  215. 
see  Bailee's  Lien. 
LIMITATION  OF  ACTION  (see  Actions)  — 

limitation  runs  against  pledgor,  280. 
LIVERY-STABLE  KEEPERS  — 
no  lien  at  common  law,  163. 
general  lien  by  statute,  164. 
liability  for  injury  to  hirer  of  livery,  125. 
LIVESTOCK    See  Carriers  of  Goods,  486:   Carrying  of  Lite-stock 

287-291. 
LOAN.    See  Bailments  —  For  Sole  Use  of  Bailor;  For  Sole  Use  of 

Bailee;  Mutual  Bailments;  Locatio  Bailments. 
LOCATIO  BAILMENTS.    See  Locatio  Rei,  121, 133;  Locatio  Operis,  134- 

166;  Locatio  Custodi^,  167-215. 
LODGING-HOUSE.    See  Innkeeper. 
LUGGAGE.    See  Baggage. 
MANDATUM,  26,  28,  86. 

definition,  how  created,  26,  86. 
see  Bailments. 
MODERN  CLASSIFICATION  OF  BAILMENTS,  27. 
MORTGAGE  — 

chattel,  priority  over  lien,  165. 
mortgage  subject  of  pledge,  270. 
MUTUUM,  ROMAN,  8. 
NEGLIGENCE.    See  Diligence. 
what  is  negligence,  38,  40. 
gross  negligence,  41. 
a  question  of  law  and  fact,  43. 
negligence  of  skilled  bailee,  49. 
of  banks  and  banking  officers,  51. 
how  determined,  52. 

see  Bailment  for  Sole  Benefit  of  Bailor,  94;  For  Sole  Bene- 
fit OF  Bailee,  103;  Mutual  Benefit  Bailments,  130,  142. 


INDEX. 


References  are  to  sections. 


773 


NEGLIGENCE  (continued)  — 

in  case  of  special  deposits,  52. 

bailee  may  modify  liability  for.  59,  60. 

bailee  cannot  excuse  gross  negligence,  60. 
see  LocATio  Bailments. 

proof  of.  in  locatio  ciistodice,  204. 

burden  of  proof  of,  204. 

does  burden  of  proof  of,  shift,  205,  206. 

when  does,  in  bailment  cases,  207. 
see  Contributory  Negligence. 
NEGLIGENCE,  CONTRIBUTORY  — 

bailments,  contributory  negligence  as  defense  in,  207. 

warehousemen,  storage-house  keepers,  contributory  negligence,  207. 

carriers,  contributory  negligence,  defense,  479. 

property  lost  on  account  of  negligence  of  shipper,  479,  480,  481,  483. 

passenger  carriers,  contributory  negligence  a  defense,  661. 
see  Actions,  722. 
NEGROES.    See  Carriers  OF  Passengers;  Discrimination,  613. 
NEGOTIABLE  PAPER  — 

pledging  of  (Ch.  II.  Part  II). 

subject  of  pledge  or  pawn,  241. 

delivery  necessary,  241. 

equitable  assignment,  242. 

good  pledge  as  between  parties.  243. 

pledgee  holder  for  value,  when,  243. 

rules  applicable  to  pledgor  obtained  In  pledge  of,  343. 

pre-existing  debt  as  consideration,  244. 

when  sufficient  consideration,  244. 

foreclosure  of  such  pledge,  313. 

not  visual  to  sell  at  public  auction.  313. 

English  rule,  sale  same  as  if  corporeal  property,  314. 

pledgee's  recourse  to  pledged  securities,  what,  315. 

duty  of  pledgee  to  collect  securities,  315. 

must  use  diligence  in  collecting,  316. 

liable  for  negligence  in  collecting,  316. 

pledgee  may  recover  in  an  action  on,  317. 

securities  liable  to  equities  in  maker,  317. 

compromise,  pledgee  can,  380. 
NON-NEGOTIABLE  AND   QUASI-NEGOTIABLE   INSTRUMENTS  (see 
Pledge  and  Pawn,  Ch.  Ill,  Part  II)  — 

nature  and  effect  of  such  instruments,  245. 

indicia  of  ownership  of  property,  245. 

corporate  stock,  pledging  of,  246. 

certificate  of,  not  the  property,  but  represents  it,  346. 

what  a  sufficient  delivery  of,  247. 

indorsement  in  blank,  when  sufficient,  247,  248. 

equity  will  enforce  transfer  on  books,  when,  249. 

charter  and  by-laws,  importance  of,  250. 

pledgee  of  stock  may  transfer  the  title,  253. 


774  INDEX. 

References  are  to  sections. 

NON-NEGOTIABLE  AND  QUASI-NEGOTIABLE  INSTRUMENTS  (con- 
tinued)  — 
pledgor's  remedy  for  wrongful  transfer,  252. 
transferee  in  blank  may  write  ti'ansfer  over  indorsement,  252. 
transferee  having  apparent  title  may  confer  title,  252. 
pledgee's  rights  and  liabilities  after  default,  319. 

pledgee  may  obtain  judgment,  may  sell  property  on  execution,  may 
foreclose  pledge,  319. 

bailor  may  redeem  stocks,  321,  333. 
Foreclosure  of  such  Pledge. 

broker,  bailee,  may  foreclose  or  sell  stock,  when,  323. 

when  foreclosure  may  be  made,  custom,  usage,  322. 

may  foreclose  for  value  to  pay  margins.  322. 

sale  not  public  but  in  stock  market  by  broker,  322. 

irregularity  in  foreclosure,  may  waive,  324. 

tender  of  amount  when  pledgee  refuses  payment,  333. 

when  stocks  are  entered  in  books  of  company  as  pledgee's  property, 
326. 
Bill  op  Lading  Subject  of  Pledge,  253. 

delivery  of,  254. 

with  draft  attached,  256. 

how  far  negotiable,  257. 

bona  fide  holder  of,  258. 
Warehouse  Receipt  Subject  of  Pledge,  261. 

delivery  of,  262,"  263,  265. 
Insurance  Policy  Subject  of  Pledge,  266. 

delivery  a  requisite,  how  made,  267,  268,  269. 
Notes,  Mortgages,  Bonds  and  Mortgages,  270. 

delivery  of,  indorsement,  270. 

effect  of  delivery  without  indorsement,  271. 

pledge  distinguished  from  chattel  mortgage,  273. 
NOTES  AND  MORTGAGES,  BONDS  AND  MORTGAGES  — 
subject  of  pledge,  270. 

transferable  by  indorsement  of  note  in  blank,  270. 
the  note  carries  with  it  its  security,  270. 
mere  delivery  as  pledge  without  indorsement,  271. 
assignment  and  transfer,  272. 
for  foreclosure  of  pledge  of,  313,  314,  315,  316,  317. 
pledgee  may  compromise,  318. 
NOTICE  — 

of  intention  to  terminate  gratuitous  bailment,  80. 

pledge  or  pawn,  bailor's  notice  of  intention  to  redeem,  283. 

notice  of  sale  on  foreclosure  of,  304,  306. 
innkeepers,  limiting  liability,  372. 

notice  must  be  brought  to  personal  attention  of  guest,  373L 
common  carriers,  limiting  liability  by  notice,  520. 

cannot  limit  by  mere  general  notice.  520. 

as  to  general  notice  written  or  printed  on  receipt  or  bill  of  lading, 
522. 


INDEX.  775 

References  are  to  sections. 

NOTICE  (continued)  — 

as  to  notice  of  arrival  of  goods  at  destination,  581,  582,  583,  584. 

notice  requisite,  stoppage  in  transitu,  589,  590,  592. 
passenger  carriers,  633. 
carriers  by  water,  notice  to  consignee  of  arrival  of  goods,  573. 

must  be  reasonably  diligent  in  giving  notice,  574. 

notice  must  be  actual  for  removal  of  goods  at  proper  time  and 
place,  576. 

notice  dispensed  with  by  contract,  577. 

usage,  course  of  dealing,  etc.,  excuses,  578. 

inattention  of  consignee  to  notice  will  not  prolong  liability,  579. 

OMNIBUS  — 

are  carriers  of  goods  and  carriers  of  passengers,  418. 
ORDINARY  BAILMENTS,  29.    See  Bailments. 
OWNERSHIP  — 

bailor's  title  to  the  property  bailed,  20. 

absolute  title  in  bailor  not  necessary,  20. 

one  having  special  property  in,  may  bail,  20. 

bailee  cannot  dispute  bailor's  title,  20. 

bailor  may  sell  or  incumber,  21. 

PARTICULAR  OR  SPECIFIC  LIEN.     See  LlEN. 
PARTIES  — 

to  bailments,  11. 

who  may  be,  12. 

competency  of,  13. 

disabilities  of,  a  shield,  not  a  sword,  14 

agents  may  create,  15. 

corporation  may  be,  16. 

PASSENGERS.    See  Carriers  of  PASSENGERa 

PASSES  — 

drovers  riding  on,  are  passengers,  599. 

fraudulently  obtained,  640. 

one  riding  on,  not  entitled  to  rights  of  passenger,  640. 

limitation  of  liability  to  persons  riding  on,  664. 

gratuitous  passes,  664. 

passes  for  consideration,  664. 

the  effect  of  passenger's  signing  conditions  limiting  liability,  664 
PAWN.    See  Pledge  and  Pawn. 

PAYMENT  — 

pledge  and  pawn,  where  several  debts  secured  by  pledge,  286, 
the  application  of  payments  in  case  of,  236. 
pledgee  may  apply  payments,  236. 

if  pledgee  does  not  make  application  pledgor  may,  236. 
pledge  terminated  by  payment  of  debt,  328. 
innkeeper,  lien  of  discharged  by  payment,  385. 

carrier's  goods,  payment  or  tender  required  before  action  for  re- 
fusal to  carry  goods,  .453. 


776  INDEX. 

References  are  to  sections. 

PAYMENT  (continued)  — 

carriers,  amount  due  depends  upon  goods  delivered.  538. 

payment  a  condition  precedent  to  carrying  goods,  537. 

lien  of,  satisfied  and  discharged  by  payment  of  freight,  559,  560. 
carriers  of  passengers,  payment  of  fare  not  requisite  to  becoming  a 
passenger,  603,  604 

fraudulently  evading  payment,  604. 

payment  of  fare  when  ticket  lost,  636. 

ejection  of  passenger  for  non-payment,  644. 

payment  for  extra  baggage,  675. 
PIRATES  UPON  THE  HIGH  SEAS  — 

are  considered  public  enemies,  474. 
PLEADING.    See  Actions  Against  Carriers. 
PLEDGE  OR  PAWN  (Part  II)  — 
pignus,  pledge  or  pawn,  26,  28,  216. 
the  relation,  216. 

mutual-benefit  bailments,  114,  216. 
scope  of  business,  217. 
definition,  218. 
essentials,  4,  219. 
parties  competent,  220. 

certain  persons  not  competent  at  common  law,  220. 
must  be  assent  of  parties,  221. 
corporations,  partnership,  agents,  as  parties,  223. 
property  the  subject  of  the  pledge,  223. 
corporeal  or  incorporeal  propert}',  224. 
property  not  in  existence  or  not  acquired.  225. 
potential  existence  or  ownership  sufficient,  226. 
natural  inci'ease  of  property,  subject  of  pledge,  226. 
exempt  property  may  be  pledged,  227. 
pensions,  officer's  pay,  soldiers,  228. 
Debt,  Obligation  or  Engagement,  229. 

collateral  security,  pledge,  230. 

debt  secured,  contract  should  specify,  231. 

past,  present  or  future  debt  may  be  secured  by,  232. 

debt  of  another  may  be  secured  by.  233. 

as  to  holding  property  for  another  or  former  debt,  234 

no  authority  to  so  hold  if  no  contract,  234. 

continuing  securit3^  pledge  may  be  for.  235. 

when  several  debts,  application  of  payment,  236. 

pledgee  may  make  application  of  payments,  when,  236. 

where  the  same  debt  is  secured  by  other  collateral,  236. 

sureties  cannot  be  subrogated  to  pledgee's  right,  etc.,  236. 

such  subrogation  obtained  by  paying  debt,  336. 

pledgee  may  hold  for  other  debts  secured  by  it,  236. 

interest  of  debt  secured  as  well  as  principal,  337. 

delivery  of  property  by  pledgor,  acceptance  by  pledgee,  237a. 

possession,  notice  to  world,  237a.  * 

pledge  good  between  parties  if  no  delivery,  when,  238. 


INDEX.  777 

References  are  to  sections. 

PLEDGE  OR  PAWN  (continiied)  — 
Delivery,  what  should  it  be,  239. 

constructive  or  symbolical  delivery,  240. 
Negotiable  Paper,  Pledge  of  (Ch.  II,  Part  II),  241. 

delivery  of,  when  sufficient,  241. 

pledgee  holder  for  value,  when,  243. 

rules  applicable  to  purchaser  of,  obtain,  243. 

pre-existing  debt  as  consideration,  244. 
Non-negotiable  Instruments  (Ch.  Ill,  Part  II),  245. 

nature  and  effect  of  such  instruments,  245, 

corporate  stock,  pledging  of,  246. 

delivery  of,  what  sufficient,  247. 

indorsement  in  blank,  when  sufficient,  247,  248. 

equity  will  enforce  transfer,  when,  249. 

charter  and  by-laws,  importance  of,  250. 

pledgee  of  stock  may  transfer  title,  apparent  owner,  253. 

pledgor's  remedy  for  wrongful  transfer  by  pledgee,  252. 

bill  of  lading  subject  of  pledge,  253. 

delivery  of,  254. 

when  draft  attached,  256. 

how  far  negotiable,  257. 

bona  fide  holder  of,  258. 

warehouse  receipt  subject  of  pledge,  260. 

delivery  of,  when  sufficient,  262.  263,  265. 
Insurance  Policy  Subject  to  Pledge,  266. 

delivery  requisite,  how  made,  267.  268,  269. 
Notes  and  Mortgages,  Bonds  and  Mortgages,  270. 

delivery  of,  indorsement,  270. 

effect  of  mere  delivery  without  indorsement,  271. 

pledge  distinguished  from  chattel  mortgage,  273. 
Pledgor's  Rights  and  Liabilities  (Ch.  IV,  Part  II). 

depends  upon  contract  creating  pledge,  274. 

pledgor's  rights  generally,  275. 

may  require  ordinary  diligence,  276. 

may  protect  the  pledged  property,  when,  277. 

may  require  pledgee  to  collect  pledged  securities,  277. 

purchaser  of  property  takes  all  the  rights  of  the  pledgor,  277. 

the  purchaser  may  redeem  the  pledge  and  take  the  property,  277, 
333. 

the  purchaser  should  give  the  pledgee  notice,  277. 

pledgor's  interest  subject  to  legal  process,  278. 

when  debt  barred  by  statute  of  limitations,  279. 

when  statute  of  limitations  will  run  against  pledgor,  280. 

notice  of  intention  to  redeem,  when  necessarj',  282. 

warranty  of  title  of  property  by  pledgor,  283. 
Pledgee's  Rights,  Duties  and  Liabilities,  284. 

possession  of  property  necessarily  with  pledgee.  285. 

pledge  an  incident  of  the  debt  and  assignable,  286. 


i  t  O  INDEX. 

References  are  to  sections. 
PLEDGE  OR  PAWN  (continued)  — 

assignment  of  debt  equitably  assigns  pledge.  287. 

assignee's  rights  subject  to  contract  of  pledge,  288. 

pledgee's  right  to  repledge,  289. 

pledgee's  right  to  use  the  pledged  property,  290. 

expenses  and  profits  on  account  of  pledge,  291. 

usual  and  necessary  expenses  pledgee  may  pay,  291. 

profits  and  increase  pledgee  must  account  for,  291. 

pledgee's  liability  for  loss  and  damages,  292. 

ordinary  care  and  diligence  required,  292. 

perishable  goods,  ordinary  care  to  preserve,  293. 

property  lost  by  theft,  292. 

payment  of  debt  releases  pledged  property,  293. 

pledgee  cannot  retain  property  after  payment  of  debt  to  secure 
other  debts.  293. 

tender  of  amount  due  will  release  property  from  lien  of  pledge.  294. 

the  lien  is  discharged  but  not  the  debt,  if  tender  is  not  accepted, 
294,  298. 
Pledgee's  and  Pledgor's  Rights  and  Obligations  After  Default 
(Ch.  V,  Part  II). 

subdivision  of  the  subject,  295. 

after  default  pledgee  may  foreclose  pledge,  sue  debt,  obtain  judg- 
ment, levy  execution,  296. 

if  judgment  and  execution  obtain,  may  levy  on  other  property,  296. 

pledged  security  not  lost  by  suit,  judgment  and  execution,  297. 

tender  discharges  lien  but  not  debt,  298. 

pledgee  by  attaching  pledged  property,  or  levying  execution  may 
waive  lien,  299. 

pledgor's  defense  to  action  of  pledgee  on  debt,  300. 

pledge  is  not  affected  by  an  action  upon  the  debt,  800. 

the  pledgor  cannot  offset  property  pledged  in  a  suit  for  the  debt, 
300. 

if  the  property  has  been  converted,  may  offset,  300. 
Foreclosure  of  Pledge  of  Corporeal  Property,  301. 

pledgor  may  redeem  at  any  time  before  sale,  301,  304. 

several  ways  of  foreclosure.  301. 

when  may  sell  under  power  in  contract  of  pledge,  302. 

power  to  sell  implied  if  no  written  contract,  302. 

common-law  foreclosui-e,  302. 
sale  must  be  public,  302,  303. 

sale,  notice  of,  good  faith,  304,  306. 

pledgee  cannot  be  purchaser  at  sale,  305. 

may  be  if  fair  and  acquiesced  in  by  pledgor,  305. 

pledgor  cannot  compel  pledgee  to  sell,  307. 

his  remedy  is  to  redeem,  307. 

as  to  surplus  after  sale  and  debt  paid,  308. 

statutory  foreclosure,  309. 

foreclosure  in  equity,  310,  311. 

when  pledgor  a  bankrupt,  312. 


INDEX.  779 

References  are  to  sections. 

PLEDGE  OR  PAWN  (continued)  — 

When  the  Property  Pledged  Negotiable  Instruments,  313. 

how  foreclosure  diflfers  when  negotiable  instruments,  313. 

not  usuall}^  sale  of  at  public  auction,  313. 

under  English  rule  sell  the  same  as  though  corporeal,  314. 

pledgee's  recourse  to  pledged  securities,  what,  315. 

pledgee  must  collect  securities,  315. 

must  use  diligence  in  collecting,  316. 

for  negligence  in  collecting,  liable,  316. 

pledgee  may  recover  in  an  action  on,  317. 

securities  liable  to  equities  in  maker,  317. 

compromise;  pledgee  can,  when,  318. 
When  Pledged  Property  Consists  of  Stocks  and  Bonds. 

pledgee's  rights  and  liabilities  after  default,  319. 

pledgee  may  obtain  judgment,  319. 

pledgee  may  sell  on  execution,  319. 

or  may  foreclose  pledge,  319. 
Stocks  Held  on  Margins,  Purchased  by  Brokers,  320. 

such  stocks  held  as  pledge  for  advancements  by  broker,  320. 

custom,  usage,  course  of  business  as  to  margins,  321. 

customary,  the  bailor  may  redeem  stock,  321. 

broker,  bailee,  may  foreclose  or  sell  stock,  when,  323. 

margins  must  be  paid  or  kept  up.  322. 

when  foreclosure  may  be  made;  custom,  usage,  323, 

failure  to  pay  margins  after  notice,  foreclosure,  322. 

sale  not  public,  but  in  stock  market  by  broker,  322. 
Rights  and  Liabilities  of  Pledgor  After  Default,  323. 

may  redeem  at  any  time  before  foreclosure,  323. 

may  tender  amount  due  if  pledgee  refuses  payment,  328. 

irregularities  in  foreclosure,  may  waive,  324, 

redemption  in  equity,  325,  326. 

when  stocks  are  entered  in  books  of  company  as  pledgee's  prop- 
erty, 326. 

equity  will  undo,  326. 

when  pledgee  refuses  to  reconvey  stocky  so  entered,  equity  will 
decree  it,  326. 

pledgor  is  entitled  to  an  accounting  from  the'  pledgee,  327. 
Termination  of  the  Relation  of  Pledge,  338. 

the  several  ways  of,  328. 

by  redelivery  of  the  property,  328. 

by  payment  of  the  debt,  328, 

by  tender  of  the  amount  due,  328. 

loss  or  destruction  of  the  pledged  property,  328i 

by  sale  of  the  pledged  property,  329. 

merger;  pledgee  purchasing  property,  328, 

by  conversion  of  the  property  by  pledgee,  328. 

when  duty  of  pledgee  to  redeliver  property,  328. 


780 


INDEX. 


References  are  to  sections. 


POSTOFFICE  DEPARTMENT  — POSTAL  SERVICE  (Ch.  I,  Part  IV)  — 
liability  of  postoffice  department,  388. 
postmasters,  389. 
liability  of  postmasters,  390. 
carriers  of  mail,  liability,  391. 
POSTMASTERS.     See  Postat.  Service,  389. 
POSTOFFICE  DEPARTMENT,  888. 
POSTAL  SERVICE  (Ch.  I,  Part  IV)  — 
liability  of  postoffice  department,  388. 
postmasters  and  their  liability,  389,  390. 
carriers  of  mail,  391. 
PROPERTY  — 

bailment;  kind  of  property  subject  of,  18. 
personalty,  not  realty,  subject  of,  18. 
expenditure  to  preserve  property,  when  bailor  liable,  44 
bailee,  right  to  use  property  bailed,  46. 
often  duty  of  bailee  to  use.  46. 
unwarranted  use  of,  by  bailee,  47. 

bailee  may  compel  adverse  claimants  to  interplead,  54 
bailor  may  have  action  for  injured  property,  57,  129. 
bailee  must  redeliver  propert\',  61. 
redelivery  not  always  required,  4,  5,  62. 
excuse  for  non-delivery  by  bailee  to  bailor,  63. 
lien  of  bailee  for  compensation,  68. 

delivery  of  property  for  the  purpose;  bailment  a  requisite  to  lien,  69. 
possession  of  property  requisite  to  lien,  70. 
finder  of  property  may  have  lien,  71. 
extinction  of  lien  upon,  72. 
cannot  modify  the  lien,  74. 

by  destruction  of  property,  bailment  terminated,  83. 
bailee  cannot  retain  for  other  debts  due  him,  112. 
bailor  may  defend  title  to,  129. 

negotiable  paper,  property  subject  of  the  pledge,  241. 
non-negotiable  paper,  property  subject  of  pledge,  245. 
bill  of  lading,  property  subject  of  pledge,  253. 
bill  of  lading  with  draft  attached,  256. 
warehouse  receipts,  property  subject  of  pledge,  261. 
insurance  policies,  266. 
notes,  mortgages,  bonds,  270. 
RAILROAD  COMPANIES  {see  Carriers  of  Goods;   Carriers  of  Pas- 
sengers)— 
are  common  carriers  of  goods  and  passengers,  424. 
not  all  railroad  companies  are  common  carriers,  426. 
railroads  built  for  private  use,  426. 
RECEIVERS  AND  TRUSTEES  — 

common  carriers,  when,  424. 
REDELIVERY  — 

of  bailed  property,  not  always  necessary,  4,  5,  63. 

necessity  of  redelivery  determined  by  contract  express  or  implied,  6,  7. 


INDEX.  781 

References  are  to  sections. 

REDELIVERY  (continued)  — 

redeliver}'  at  termination  of  bailment,  111. 

must  redeliver  with  all  natural  accessions,  111. 

if  bonds  or  securities,  with  interest  accumulated  or  collected,  111. 

bailee  cannot  retain  property  or  accessions  for  debts  due  him,  112, 

exceptions  where  compelled  to  pay  ordinary  expenses,  113. 

may  in  some  cases  have  lien  on  property,  113. 
an  exception  to  the  rule  that  must  redeliver,  7. 

money  deposited  in  bank,  not  necessary,  7. 

money  loaned,  not  necessary,  7. 

grain  stored  in  elevators,  not  necessary,  9. 

grain  stored  in  flouring-raills,  not  necessary,  10. 
bailor  may  bring  replevin  for  failure  to  deliver,  when,  61. 
excuse  for  non-delivery,  63. 

pledge  and  pawn,  redelivery  of  property  terminates,  338. 
RIGHTS  AND  LIABILITIES  — 

bailments;  gratuitous  and  non-gratuitous  bailments,  33. 

liability  rests  on  benefit  to  the  parties,  35. 

charter  showing  duties  and  liabilities,  37. 

see  Bailments;  Liability  of  Bailor  and  Bailee;  Locatio 
Bailments;    Redelivery;   Carriers,  Public  or  Common; 
Carriers  of  Goods. 
liability  of  carrier  of  goods  that  of  an  insurer,  466. 
limitation  of  liability,  466. 
reasons  for  liability,  467. 
animate  and  inanimate  freight,  468. 

when  loss  the  result  of  the  act  of  God,  469,  470,  471,  473,  473. 
when  loss  occasioned  by  public  enemy,  474,  475,  476. 
when  occasioned  by  strikers,  rioters,  I'obbers,  477. 
when  lost  by  reason  of  the  acts  of  the  shipper,  479,  480,  481,  483,  483. 
negligence  of  the  carrier,  484 
where  the  loss  occasioned  by  the  inherent  nature  of  the  property,  485, 

486. 
carriers  of  live-stock,  487,  491. 

the  loss  the  result  of  exercise  of  public  authority,  492. 
for  deviation  or  delay,  493,  503. 
contract  limiting  liability  of  carrier,  509,  533. 
connecting  carriers,  533,  536. 

see  Carriers  of  Passengers. 
duties  of  carriers  and  passengers,  609,  618. 
passenger  carrier's  liability,  619,  643. 

see  Sleeping-car  Companies,  641,  643;  Limitation  op  LiaSilitt; 
Carriers  of  Passengers,  659,  665. 
Baggage  — 

liability  of  carrier  for,  681,  689. 
ROBBERY  — 

excuses  liability,  when,  55. 

robbers  are  not  considered  as  tliC' public  enemy,  474 


7S2  INDEX. 

References  are  to  sections. 

SALES  (see  Bailments,  23,  24,  25)  — 

sale  of  property  by  bailee,  conversion.  64, 
enforcement  of  lien  by,  76. 

grain  stored  in  elevators  or  flouring-mills,  when  a  sale,  when  bail- 
ment, 24. 
delivery  to  warehouseman,  whether  sale  or  bailment,  175. 
pledge  and  pawn,  sale  of  property  pledged  under  power  of  sale  in  con- 
tract, 302. 
power  to  sell  implied  if  no  written  contract,  303. 
notice  of  sale,  304-306. 
pledgee  cannot  be  purchaser,  305. 
under  what  circumstances  may  be  purchaser,  305. 
pledgor  cannot  compel  pledgee  to  sell  property,  307. 
his  remedy  is  to  redeem,  307. 
surplus  after  sale  and  debt  paid,  308. 
foreclosure  and  sale  in  equity,  310,  311. 
negotiable  instruments,  sale  of  at  public  auction  on   foreclosure  of 
pledge  not  usual,  313. 
under  English  rule  same  as  though  property  corporeal,  314. 
what  is  the  pledgee's  recourse  to  pledged  securities,  315. 
duty  of  pledgee  to  collect,  not  sell  securities,  315. 
when  pledged  property  consists  of  stocks  and  bonds,  319. 
stocks  held  on  margins,  purchased  by  brokers,  320,  322.  ^ 

sale  of,  not  a  public  sale  on  foreclosure,  322. 
pledge  relation  terminated  by  sale  of  the  pledged  property,  328. 
carriers  of  goods;  when  carrier  can  sell  goods  to  satisfy  lien,  542. 
his  duty  to  sell  goods  under  certain  circumstances,  542. 
when  he  cannot  carry  them  to  their  destination  because  perishable, 
542. 
SAFE-DEPOSIT  AND  TRUST  COMPANIES  — 

not  gratuitous;  differs  from  mere  deposit um,  197» 
the  nature  of  the  bailment  and  the  diligence  required,  198. 
bound  to  exercise  high  degree  of  ordinary  diligence,  198. 
see  Bailments;  Locatio  Custodi^e. 
SPECIAL  DEPOSIT  — 
in  banks,  51. 

determining  negligence  as  to,  52. 
special,  not  general  deposit,  89. 

see  Deposits;  Safe-deposit  and  Trust  Companies. 
STAGE-COACHES  — 

drivers  of  stage-coaches,  diligence  in  selecting,  621. 
liability  as  common  carriers,  621,  note  3. 

bound  to  furnish  strong  vehicles,  well-broken  horses,  skilful  and  prudent 
drivers:  liable  for  slightest  degree  of  negligence,  621,  note  3. 
STEAMBOATS  — 

is  the  liability  of  innkeepers  and  steamboat  companies  the  same,  686. 
STOCKS  — 

the  pledging  of  corporate  stocks.  246. 
requirements  of  such  pledge,  246. 


INDEX.  783 

References  are  to  sections. 

STOCKS  (continued)  — 

as  to  sufficient  delivery,  247. 

transfer  in  blank,  effect  of,  248,  249. 

how  affected  by  loans;  charter  of  company,  350. 

pledgee  of,  protected  against  creditors,  251. 

pledgee  of  by  indorsement,  may  transfer  title,  when,  253. 

equity  court  invoked  to  protect  pledgor  when  stock  transferz'ed  on 
books  by  pledgee,  252. 

rights  of  pledgee  of  stock  after  default,  319. 

foreclosure  and  other  remedies,  319. 

stocks  held  on  margins,  320. 

liabilities  of  parties,  custom,  usage,  course  of  business,  331. 

foreclosure  of  pledge  of  stocks  held  on  margins,  323. 

not  by  public  sale,  but  sale  in  stock  market,  322. 
STOPPAGE  IN  TRANSITU.    See  Carriers  of  Goods,  587-593. 
STREET-CAR  COMPANIES  — 

are  common  carriers  of  passengers,  420. 

liability  differs  from  common  carriers,  420. 
see  Carriers  of  Passengers. 
STRIKERS  — 

are  not  deemed  to  be  the  public  enemy,  477. 

their  action  wnll  not  relieve  carrier  from  extraordinary  liability,  477. 

act  of,  will  excuse  deviation  and  delay,  477. 
see  Carriers  of  Goods. 
TENDER  — 

pledge  or  pawn,  discharge  of  lien  of  by  tender,  298. 
does  not  discharge  debt,  298. 

innkeepers;  lien  of,  discharged  by  tender,  385. 

carriers  of  goods;  tender  of  freight  necessary  before  action  for  non- 
transportation,  454. 
tender  discharges  carrier's  lien,  500. 
TERMINATION  — 

bailments,  the  relation  of,  77,  213. 

several  ways  of,  noted,  78-84. 

if  bailment  gratuitous,  generally  at  will  of  bailor,  80. 

bailor  must  be  I'easonable  as  to,  80. 

bailee  may  terminate,  when,  80  (b). 

for  abuse  or  injury  of  property,  80  (g). 

if  commodatum,  at  will  of  bailee,  80  (h). 

of  termination  of  custody  for  hire,  warehouseman,  213. 

may  be  at  will  of  bailor  by  paying  for  custody,  213. 

several  ways  of  terminating.  105. 

pledge  and  pawn,  several  ways  of,  328. 

common  carriers,  561-564. 
THIEF  — 

in  possession  of  property,  may  be  bailor,  105k 
TICKETS  — 

issued  as  evidence  of  payment  of  fare,  633. 

is  both  a  receipt  and  a  contract,  633. 


7S4  INDEX. 

References  are  to  sections. 

TICKETS  (continued)  — 

carrier  will  be  held  strictly  to  conti'act  in.  633. 

ambiguous  lien  is  construed  favorably  to  passenger,  633. 

amount  charged  for  must  be  reasonable;  regulated  by  statute,  633. 

cannot  charge  more  than  reasonable  amount  but  may  charge  less,  633. 

excursion  tickets;  stipulation  in  must  be  reasonable,  633. 

stipulation  in,  consideration  for,  633. 

when  agent  of  carrier  violates  conditions,  634. 

when  passenger  violates  conditions  through  fault  of  carrier  or  agent 
644. 

exhibition  and  surrender  of,  635. 

lost  or  mislaid  ticket,  636. 

reasonable  time  to  find  and  produce  it,  636. 

stop-over  tickets,  time  limit,  train  limit,  637. 

when  passenger  boards  train  knowing  time  on  ticket  has  expired,  637. 

over  connecting  lines.  638. 

may  stop  off  at  terminus  of  any  line,  638. 

may  continue  journey  if  passenger  starts  within  limit  of  ticket,  638. 

if  delaj'ed  by  wreck  or  by  fault  of  carrier,  639. 

if  voluntarily  obtained,  640. 

if  a  free  pass  voluntarily  obtained,  640. 

limitations  of  liability,  659-665. 
TITLE  — 

bailments,  20. 

by  bailor  not  necessary,  20.  \ 

finder  of  goods  sufficient  for  bailment  of,  20. 

bailee  cannot  dispute  his  bailor's  title,  20. 

title  of  bailee,  21. 

locatio  operis,  bailee  has  special  property  in  thing,  138. 

can  maintain  action  against  third  parties  for  injury  to.  138. 

to  product,  when  material  furnished  and  labor  to  be  sold  and  profits 
divided,  140. 

if  thing  destroyed  during  the  carrying  out  of  the  agreement,  or  after 
furnished,  141. 

if  work  to  be  performed  by  the  job  on  the  thing,  143. 

title  to  material  used  by  bailee  passes  to  bailor  by  accident,  160. 

pledgor  warrants  title  to  property  pledged,  283. 
TRANSFER  COMPANIES  — 

are  common  carriers,  423. 
WAIVER  — 

bailments;  waiver  of  bailee's  lien,  73. 

innkeepers;  of  lien  upon  property  within  the  inn,  375. 

common  carriers;  waiver  of  lien,  558. 
WAREHOUSEMEN,  STORAGE-HOUSE  KEEPERS  — 

a  mutual-benefit  bailment,  114,  171. 

defined  and  explained,  171. 

public  warehouses,  172. 


INDEX.  785 

References  are  to  sections. 

"WAREHOUSEMEN,  STORAGE-KEEPERS  (continued)  — 
bonded  warehouses,  178. 

delivery  requisite  to  liability,  174. 

when  delivery  of  property  to,  a  sale,  when  a  bailment,  175. 

the  warehouse  receipt,  176. 

assignment  of,  as  against  creditors,  176. 

warehouseman  may  insure  property,  177. 

when  diligence  requires  warehouseman  to  insure  property,  177, 

usage  and  general  course  of  business,  effect  of,  178. 

receipt  of,  technically  not  negotiable,  179. 

receipt  of,  stands  for  the  property  itself,  179. 

statutes  providing  negotiability  of,  181. 

warehouseman  estopped  from  impeaching  his  own  receipt,  180. 
common  carrier,  when  a  warehouseman,  182,  183. 
wharfingers  similar  to  warehouseman,  186. 

storage-house  keepers  like  warehouse  keepers,  190. 

duty  of  bailor  toward,  191. 

as  to  dangerous  articles  in,  193. 

when  liability  begins  and  ends,  193,  194. 

proper  place  and  kind  of  storage,  202. 

diligence  must  keep  pace  with  improvements,  203. 

the  diligence  required,  203. 

proof  of  negligence,  204. 

burden  of  proof,  204. 

does  the  burden  of  proof  shift,  204,  206. 

contributory  negligence  a  defense,  207. 

the  negligence  of  servants  of,  208. 

master  liable  for  negligence  of  servants,  208. 

bailee's  right  to  use  the  bailed  property,  209. 

delivery,  misdelivery,  non-delivery,  210. 

bailee  cannot  dispute  bailor's  title  except,  210. 

confusion  of  goods,  when  allowed,  211. 

embezzling  property,  criminal,  212. 

termination  of  relation,  213. 

conversion  of  property,  214. 

compensation  and  lien  of,  215. 

see  Safe-deposit  and  Trust  Companies. 
WAREHOUSE  RECEIPTS.    See  Warehousemen,  Storage-house  Keep- 
ers. 
WHARFINGERS  — 

duties  and  liabilities  like  those  of  warehousemen,  186. 

must  exercise  ordinary  diligence,  186. 

when  liability  begins,  187. 

cannot  charge  witii  responsibility  until  goods  delivered,  187. 

mere  delivery  of  goods  at  wharf  not  sufficient  to  be  put  in  control  of 

wharfinger,  187. 
as  to  notifying  of  delivery  of  goods,  187. 
when  liability  ends,  188. 
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